Karnataka High Court
Smt Colomba James vs Smt Meeramma on 29 May, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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RFA NO. 1316 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 1316 OF 2015 (PAR)
BETWEEN:
1. SMT.COLOMBA JAMES
W/O LATE R.S.JAMES
AGED ABOUT 65 YEARS
R/AT NO. 3464/C
1ST 'F' CROSS, R.P.C. LAYOUT
VIJAYANAGAR
BENGALURU-560 040.
2. SMT. FLORENCE RAMAIAH
W/O RAMAIAH
AGED ABOUT 60 YEARS
C/O N. SATISH
Digitally R/AT D.NO.39-26-46
signed by RAJIV NAGAR
SHAKAMBARI
Location:
PUNJAB HOTEL JUNCTION
HIGH COURT VIZAG-7.
OF
KARNATAKA
3. SMT. SHEEBA GERSHOM
S/O GERSHAM KANAKARAJ
AGED ABOUT 52 YEARS
R/AT NO.5, 1ST PHASE,
1ST MAIN, MANJUNATHNAGAR
WEST OF CHORD ROAD
BENGALURU-560 006.
...APPELLANTS
(BY SRI.K.SANATHKUMAR SHETTY., ADVOCATE (PH))
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RFA NO. 1316 of 2015
AND:
1. SMT. MEERAMMA
W/O NOEL NELSON
AGED ABOUT 69 YEARS
R/AT CHUNCHANAKUPPE VILLAGE
TAVEREKERE HOBLI
BENGALURU SOUTH DISTRICT.
2. SMT. JOY LOUIS
W/O LOUIS SUBASTAIN
AGED ABOUT 66 YEARS
R/AT PLOT NO. 38
VENKATESHA NAGAR EXTN.
1ST STREET, VIRIGAMBAKKAM
CHENNAI-92, TAMILNADU.
3. SMT. HARSHAMMA
W/O NASIRULLA KHAN
AGED ABOUT 63 YEARS
R/AT NO. 22, MORE ROAD
FRAZER TOWN
BENGALURU-560 005.
4. SRI.DAYAL FRANCIS
S/O R.FRANCIS
AGED ABOUT 56 YEARS
R/AT CHUNCHANAKUPPE VILLAGE
TAVAREKERE HOBLI
BENGALURU SOUTH DISTRICT.
5. SMT.JEROMA FRANCIS
S/O R.FRANCIS
AGED ABOUT 51 YEARS
R/AT CHUNCHANAKUPPE VILLAGE
TAVAREKRE HOBLI
BENGALURU SOUTH DISTRICT.
6. SMT. H.B.LAKSHMAMMA
(SINCE DEAD BY HER LRS)
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RFA NO. 1316 of 2015
6(A) NEELAKANTA R.GOWDA
S/O LATE M.B.RAJU
AGED ABOUT 59 YEARS, NO.547
18TH CROSS, 9TH MAIN
M.C.LAYOUT, VIJAYANAGAR
BENGALURU-560 040.
...RESPONDENTS
(BY SRI. JAYASIMHA.K.P. ADV. FOR R1, R3, TO R5 (PH)
SRI. BIPIN HEGDE, ADVOCATE FOR R6 (PH) AND R6 (A)
R2 SERVED AND UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED U/S.96 ORDER
XLI RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 31.07.2015 PASSED IN O.S.NO.134/2008 ON THE FILE
OF THE PRL.SENIOR CIVIL JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU, PARTLY DECREEING THE SUIT FOR
PARTITION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
Being aggrieved by the dismissal of claim for partition
inter alia in respect of schedule 'C' properties described in
O.S. No. 134/2008 vide Judgment and decree dated
31.07.2015 on the file of the Principal Sr. Civil Judge,
Bengaluru Rural District, Plaintiff, Defendant No.2 and
Defendant No.6 have jointly preferred this appeal.
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RFA NO. 1316 of 2015
2. So for as claim of the plaintiff in respect of 'A'
and 'B' schedule properties described in the schedule
appended to the plaint in the aforesaid suit granting 1/8th
share to the plaintiff, no appeal is preferred by any of the
parties to the suit. Thus, judgment and decree in respect
of the aforesaid 'A' and 'B' schedule properties has become
final.
3. The parties to this appeal are referred as per
their rank before the trial Court for convenience.
4. According to plaintiff, the schedule properties
were the properties purchased by the father of the plaintiff
and herself purchased under registered sale deed dated
18.02.1955. Her father by name Francis.R. died intestate
on 29.07.2004 leaving behind plaintiff and defendants
No.1 to 7 as his legal heirs. It is they who inherited the
schedule properties by way of succession. It is alleged,
that all the legal heirs are entitled for equal share in the
schedule properties. It is alleged, that Defendants No. 1, 5
and 7 behind the back of the plaintiff, to deprive her share
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created a false Partition Deed dated 09.11.2004 without
allotting any share to the plaintiff. Though there was a
demand to give her share, they denied. It is further
alleged that, behind the back of plaintiff, defendant No.5
sold 'C' schedule property to defendant No.8 under
registered sale deed dated 05.11.2007. Thus, it is claimed
by the plaintiff to decree the suit by granting 1/8th share in
all the suit schedule 'A', 'B' and 'C' properties.
5. In response to suit summons defendant no.5, 7
and 8 appeared through their counsels before the Trial
Court.
6. Despite service of suit summons defendant no.1
to 4 and 6 remained absent and therefore, they were
placed Ex-parte.
7. Defendant Nos.5 and 7 jointly filed their written
statement admitting some of the plaint averments. It is
contended that, they are the absolute owners of the
schedule property by virtue of the sale deed 18.02.1955.
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Plaintiff is already married and residing in her matrimonial
home for more than 30 years and hence she has no right
in the properties. She is not the member of family of these
defendants. It is contended that, in view of the registered
partition deed dated 09.11.2004, their name is appearing
in the revenue records. Plaintiff cannot maintain the suit.
8. Defendant no.8 in her written statement
contended that, plaintiffs claim is barred by limitation. It is
further contended that, she is a bonafide purchaser of
schedule 'C' property from defendant No.5 and hence
plaintiff cannot maintain the suit in respect of the said
property. Therefore, it is prayed to dismiss the suit.
9. Based upon the rival pleadings of both the
parties, the learned trial court framed the following:
Issues
1. Whether the plaintiff proves that the partition
deed dated 19.11.2004 entered between defendant
No.1, 5 and 7 with respect to the suit schedule
properties is not binding on her?
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2. Whether the plaintiff proves that the sale deed
dated 05.11.2007 executed by 5th defendant in
favour of 8th defendant is not binding on her?
3. Whether the plaintiff is entitled for partition and
separate possession of her 1/8th share in the suit
schedule properties?
4. Whether the defendant No.5 and 7 prove that they
are the bonafide purchasers of suit 'A' schedule
property?
5. Whether the 8th defendant proves that she is the
bonafide purchaser of suit 'C' schedule property?
6. Whether the suit is hit by Order 2 Rule 2 of
C.P.C.?
7. Whether the suit is barred by law of limitation?
8. Whether the court fee paid is insufficient?
9. Whether the suit is bad for miss-joinder and non-
joinder of necessary parties?
10. What order or decree?
10. To prove the case of the plaintiff, she herself
entered the witness box as PW.1. Got marked documents
in the shape of Ex.P1 to P 8 and closed her evidence.
11. To rebut the evidence of the plaintiff, defendant
no 8 examined her power of attorney by name M. Yathish
and none of the documents are marked on behalf of
defendant no.8.
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12. On hearing the arguments and on evaluation of
the evidence, the learned trial court answered issue no. 1,
5 in the affirmative, issue no. 3 partly in the affirmative
and issue no. 2, 4 ,6 to 9 in the negative and ultimately
decreed the suit of the plaintiff in part holding that plaintiff
is entitled for 1/8 share in 'A' and 'B' schedule properties
and thereby claim of the plaintiff in respect of 'C' schedule
property is denied by the trial Court.
13. This is how the appellants are before this court
challenging rejection of the claim in respect of 'C' schedule
property.
14. Learned counsel for the appellants with all force
submits that, very rejection of the claim of the plaintiff in
respect of 'C' schedule property by the trial court is illegal,
erroneous and without application of mind. When plaintiff
being the legal heir of propositus, by virtue of Indian
succession Act, there could not have been a partition
effected in between defendant nos. 1 to 7 without her
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RFA NO. 1316 of 2015
presence. It is submitted that, rightly the trial Court has
rejected the defence of the defendant nos. 5 and 7 with
regard to alleged partition dated 09.11.2004. It is
submitted that, defendant no.8 cannot be termed as
bonafide purchaser. When plaintiff being the legal heir of
the propositus along with defendant nos. 1 to 7, defendant
no 5 could not have sold 'C' schedule property to
defendant no.8. As the properties are inherited by the
plaintiff and defendant nos. 1 to 7, he submits that, till the
partition take place in all the schedule properties by metes
and bounds, in every inch of properties, the plaintiff and
defendant nos.1 to 7 have got right. According to him, the
said sale deed dated 05.11.2007 stated to have been
executed in favour of defendant no. 8 by defendant no. 5
is not binding on the share of plaintiff. In support of his
submission, learned counsel for the appellants took us
through the evidence placed on record, as well as the
findings of a trial Court. It is his submission that, trial
Court has committed grave legal and factual error in
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declining the claim of the plaintiff in respect of 'C' schedule
property. He prays to allow the appeal.
15. As against this submission, the learned counsel
for Respondent nos. 1, 3 to 5 and 6(A) submits that,
because of the partition effected in the year 2004 which is
acted upon, the plaintiff cannot maintain the suit.
According to him, statement of objections are filed by him.
That means no independent cross objections are filed by
any of the respondents challenging the findings of the trial
Court with regard to alleged partition of the year 2004.
16. Respondent no. 2 in this appeal though served
with notice remained unrepresented.
17. Counsel for respondent no. 8 submits that, from
defendant no. 5, his client has purchased 85 guntas of
land which is equal to 2 acres 5 guntas. If the entire
properties are calculated in-terms of guntas, it would be
about 697 guntas. If the share of the each sharer is
calculated, plaintiff and defendant nos. 1 to 7, in all 8
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members being the successors are entitled for 87 guntas
each. He submits that, as defendant no. 8 has purchased
85 guntas in 'C' schedule property, whatever the share for
which defendant no.5 is entitled, that share may be
allotted to defendant no.8 as he stepped into the shoes of
defendant no.5 being the purchaser of schedule 'C'
property. Thereby, his rights would be protected under the
aforesaid sale deed of the year 2007. He submits that, as
defendant no. 8 is a bona fide purchaser of 'C' schedule
property, her rights have been rightly protected by the
trial Court by rejecting the claim of the plaintiff in respect
of the said property. He prays to dismiss the appeal.
18. We have given our anxious consideration to the
submissions of both the side. Perused the records.
19. In view of rival submissions of both the side,
the following points arise for our consideration.
1) Whether the trial Court has committed any
legal error in rejecting the claim of the
plaintiff in respect of 'C' schedule property?
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2) If so, whether the judgment and decree of
the Trial court in respect of the said property
require interference by this court?
20. Points No.1 and 2 are discussed together.
Before adverting to the other factual aspects let us
analyze the admitted facts between both the sides.
21. One late Francis .R. was the ancestor of plaintiff
and defendant nos. 1 to 7. They are his legal heirs. It is
an admitted fact that, the schedule properties are the
properties acquired by the ancestor of the plaintiff and
defendant nos.1 to 7 by name late Francis.R. under
registered sale deed dated 18.02.1955. He died on
29.7.2004. According to plaintiff, herself and defendant
nos. 1 to 7 inherited the schedule properties on demise of
R.Francis.
22. It is the case of the plaintiff that, behind the
back of the plaintiff, there was a partition effected
amongst defendant nos. 1, 5 and 7 on 09.11.2004.
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Plaintiff is not a party to the said partition deed and hence,
it is not binding on her. It is alleged that, defendant No.5
behind her back without her knowledge has sold 'C'
schedule property in favour of defendant No.8 and hence,
it is not binding on the plaintiff.
23. So far as relationship between plaintiff and
defendant nos. 1 to 7 being the legal heirs of late
Francis.R. is concerned, it is not in dispute. So also it is
not in dispute that the said properties were the properties
acquired by late Francis .R. It is not in dispute that he
died on 29.07.2004 intestate.
24. Parties to the suit i.e., plaintiff and defendant
nos.1 to 7 are Christians and governed by Indian
Succession Act, 1925. Chapter II of the Indian Succession
Act speaks of rules in cases of intestates other than Parsis.
Section 32 speaks of devolution of such a property and
section 33 speaks of where intestate has left widow and
lineal defendants or widow and kindred only or widow and
no kindred, and section 36 speaks of rules of distribution
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so also section 37 speaks of where intestate has left child
or children only. The said provisions in Chapter II of the
Indian Succession Act read as under:
32. Devolution of such property.--The property
of an intestate devolves upon the wife or
husband, or upon those who are of the kindred
of the deceased, in the order and according to
the rules hereinafter contained in this Chapter.
33. Where intestate has left widow and lineal
descendants, or widow and kindred only,
or widow and no kindred.--Where the
intestate has left a widow--
(a) if he has also left any lineal
descendants, one-thirds of his property shall
belong to his widow, and the remaining two-
thirds shall go to his lineal descendants,
according to the rules hereinafter contained;
(b) [save as provided by section 33A], if
he has left no lineal descendant, but has left
persons who are of kindred to him, one-half of
his property shall belong to his widow, and the
other half shall go to those who are kindred to
him, in the order and according to the rules
hereinafter contained;
(c) if he has left none who are of kindred
to him, the whole of his property shall belong
to his widow.
36. Rules of distribution.-- The rules for the
distribution of the intestate's property (after
deducting the widow's share, if he has left a
widow) amongst his lineal descendants shall be
those contained in sections 37 to 40.
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37. Where intestate has left child or children
only.-- Where the intestate has left surviving
him a child or children, but no more remote
lineal descendant through a deceased child, the
property shall belong to his surviving child, if
there is only one, or shall be equally divided
among all his surviving children.
25. Thus, on perusal of chapter II of the Indian
Succession Act and the aforesaid provisions with regard to
rules in cases of intestate succession, it is very much clear
that, with regard to the properties left behind by late
Francis.R., these plaintiff and defendant nos. 1 to 7 being
his children are entitled to devolution of properties equally
left by deceased late Francis.R. With regard to this
proposition of law, either defendant No.8 being the
contesting defendant or other defendants on record have
no dispute.
26. So far as respondents no.1, 3 to 5, and 6(A) are
concerned, they have not filed any independent cross
objection, except filing statement of objections. No doubt,
this being the first appellate court can take into
consideration the submissions of the said respondents but
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the trial court records do not disclose that, they have not
filed any written statement or cross examined PW.1 or
DW.1. That means, their submission before this court
remained as bald contention without any proof. Therefore,
the argument of the counsel for respondents no.1. 3 to 5
and 6(A) cannot be accepted.
27. The heavy burden lies on defendant no.8 to
prove that, he is a bona fide purchaser of schedule 'C'
property and hence his rights in the said property is to be
protected. So far as sale of the said properties under
registered sale deed dated 5.11.2007, plaintiff has
produced the certified copy of the sale deed as per Ex.P.7.
Ex.P.1 to 6 are the revenue documents produced by the
plaintiff with regard to the schedule properties.
28. Before the learned trial Court, it is the
consistent evidence of PW.1 i.e., plaintiff that, she is
entitled for 1/8th share in all the 'A' to 'C' schedule
properties. She has been cross examined at length.
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29. On perusal of the cross examination, it shows
that behind her back, without her knowledge, a sale deed
was executed by the defendant no.5 in favour of
defendant no.8. Though PW.1 admits that, at the time of
sale of 'C' schedule property defendant no.5's name was
appearing in the revenue records, but PW.1 is consistent
that, she is not a party to the said sale deed and it is not
binding on her.
30. The learned trial Court during the course of
giving finding on issue No.5 in para 17 has observed that,
"nothing elicited in the cross examination by the Power of
Attorney holder of 8th defendant (DW1) that, the 8th
defendant had purchased the 'C' schedule property
without verifying the documents". It is further observed in
the said para that, "no doubt, it is admitted by DW.1 in
the cross examination that, late R.Francis had 8 children
i.e., plaintiff and defendant nos. 1 to 7. Further, DW.1,
had answered that, he was not aware that all the children
of Francis.R. used to visit the house of Francis.R. and they
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were in joint possession over the suit properties. Further,
he was not aware that, the plaintiff was demanding
defendant nos. 5 and 7 to effect partition. It is further
observed that defendant. no. 8 had obtained legal opinion
from her advocate and had purchased 'C' property. DW.1
has answered in the cross examination that, he was not
aware about the partition effected in between defendant
nos. 1, 5 and 7 by excluding others. It is stated that, they
have given partition deed and RTC's to their advocate to
obtain legal opinion prior to purchase of 'C' schedule
property".
31. This observation of the trial Court goes against
the defence of defendant no.8. Though the trial Court
knew that DW.1 being the power of attorney of defendant
no. 8 deposed ignorance about the earlier partition, etc., it
was a bounden duty of a purchaser of the property to
ascertain the exclusive ownership of the property who
intends to purchase and then purchase the same.
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32. Regarding the doctrine of bonafide purchase,
the burden is on the purchaser to prove the good faith
who takes the place that he is innocent purchaser,
Moreover, the pleadings as to bonafide purchase is very
much necessary. The bonafide purchaser must plead and
lead evidence that he is bonfide purchaser. It was her
power of attorney, who had no knowledge about the said
transaction was examined by her. Though DW.1 has
deposed ignorance about the nature of property so
purchased and about relationship in between plaintiff and
defendant nos. 1 to 7, the learned trial Court has ignored
that, evidence and declined to grant relief in respect of 'C'
schedule property. When enquiry was made by defendant
no.8, and how he ascertained that, defendant no. 5 was
the only owner of 'C' schedule property is either pleaded
or proved by defendant no.8. To the so called partition
deed, plaintiff and other defendants are not parties.
33. So also, plaintiff, defendants no.1 to 4 and 6
are not partiers to the said sale deed being the legal heirs
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of Francis.R. No consent either express or implied have
been obtained by defendant no.5 from the aforesaid
plaintiff and other defendants. They were/are very much
interested in the 'C' schedule property.
34. The overall cumulative analysis of the evidence
of DW.1 in his cross-examinations would clinchingly
demonstrate that, firstly defendant no.8 though knew
about the rights of plaintiff and defendant nos. 1 to 7 to
settle in the "C' schedule property, ventured to purchase
the same. Any purchaser of ordinary prudence would
make enquires invariably with the members of the family
as to who are all the owners of the properties, what is the
nature of their rights, how the vendor has acquired rights
in the property, any member of the family is left over in
the so called partition deed, can he anticipate any
litigation, if he ventured to purchase etc., This common
practice has not been looked into nor considered by the
trial Court. In catena of judgments, Hon'ble Supreme
Court has categorily held that, heavy burden lies on the
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purchaser to prove his bonafide purchase. Defendant
no. 8 being aware about the nature of property and rights
of plaintiffs and defendant nos. 1 to 4, 6 and 7 deemed to
have notice of all these factual aspects.
35. The learned trial Court has committed gross
miscarriage of justice in declining the claim of the plaintiff
in respect of "C' schedule property. The evidence spoken
to by DW.1 has been sought to be diluted by the trial
Court by giving vague, untenable and meaningless
reasoning, while answering issue no.5 in respect of 'C'
schedule property.
36. The Court below has failed to appreciate the
evidence of PW.1 and DW.1 in proper perspective. As
plaintiff is already held entitled for 1/8th share in schedule
'A' and 'B' properties, like wise, she is also entitled for the
same 1/8th of share in schedule 'C' property. However,
liberty is reserved to defendant no. 8 to seek equity during
final decree proceedings in accordance with Law.
Consequently, appeal filed by the appellant deserves to
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succeed, by decreeing the suit of the plaintiff in respect of
'C' schedule property also. Accordingly, the above said
points are answered in favour of the appellants and
against the respondents.
Resultantly, we pass the following:
ORDER
(i) Appeal is allowed with no order as to
costs.
(ii) Plaintiff/Appellant no. 1 is held
entitled for 1/8th share in the suit schedule
property. However, defendant no. 5 having
sold the property in favour of defendant no.
8 / Respondent no.6 is at liberty to work out
her rights by seeking equity while drawing
the final decree proceedings before the Final
Decree Court.
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(iii) There shall be supplementary
preliminary decree in respect of 'C' schedule
properties in the above terms.
Sd/-
JUDGE
Sd/-
JUDGE
PSJ
