Karnataka High Court
Kiran Madivalappa Mugabasav vs Mohammad Jafar Son Of Hussainsab ... on 12 November, 2024
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RFA No.100029 of 2015
C/W RFA No.100028 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH R
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO.100029 OF 2015 (DEC)
C/W
REGULAR FIRST APPEAL NO.100028 OF 2015 (POS)
IN RFA NO.100029 OF 2015:
BETWEEN :
MADIVALAPPA S/O KARIYAPPA MUGABASAV
SINCE DEASED BY HIS LRS.
1.(A) SMT. LEENA W/O. VISHNUDAS GHODKE
AGE: 44 YEARS, OCC: HOUSEHOLD,
R/O.1604/A WING, PRABHA APARTMENT,
SEJAL PARK, NEAR GOREGOAN OSHIWARA,
DEPOT, GOREGOAN WEST MUMBAI-400104.
...APPELLANTS
(BY SRI DINESH M. KULKARNI, ADVOCATE)
MANJANNA
E
AND :
Digitally signed by
1. MOHAMMAD JAFAR
MANJANNA E
Location: High Court of
Karnataka, Dharwad Bench
Date: 2024.11.23 10:59:11
+0530
S/O HUSSAINSAB KALLIMANI
AGED ABOUT 43 YEARS,
OCCUPATION : AGRICULTURE,
RESIDENT AT KARIKATTI ONI,
MALAPUR, TALUK: DHARWAD-580 001.
2. DHAVALSAB MOHANLAL
S/O HUSSAINSAB KALLIMANI,
AGED ABOUT 41 YEARS,
OCCUPATION : AGRICULTURE
RESIDING AT KARIKATTI ONI,
MALAPUR, TALUKA: DHARWAD-580001.
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RFA No.100029 of 2015
C/W RFA No.100028 of 2015
3. SHAHANAWAZ
S/O HUSSAINSAB KALLIMANI
AGE: 39 YEARS, OCC: AGRICULTURE
RESIDING AT KARIKATTI ONI,
MALAPUR, TALUKA: DHARWAD-580001.
4.
AMIRJAN S/O HUSSAINSAB KALLIMANI,
AGE: 33 YEARS, OCC: AGRICULTURE
RESIDING AT KARIKATTI ONI,
MALAPUR, TALUKA: DHARWAD-580001.
5. MOHAMMAD ASHFAQ S/O HUSSAINSAB KALLIMANI,
AGE: 48 YEARS, OCC: AGRICULTURE
RESIDING AT KARIKATTI ONI,
MALAPUR, TALUKA : DHARWAD-580001.
6. SMT. BEENA W/O MALLIKARJUN SHIRAMAGONDA
AGE: 44 YEARS, OCC: HOUSEHOLD,
RESIDING AT FLAT NO.105,
ROSTAN HERITAGE APARTMENTS,
BEHIND AMRUT TAKLIES,
VIDYANAGAR, HUBBALLI-580021.
7. KIRAN S/O MADIVALAPPA MUGABASAV
AGE: 29 YEARS, OCC: AGRICULTURE,
FLAT NO.105,
ROSTAN HERITAGE APARTMENTS,
BEHIND AMRUT TAKLIES,
VIDYANAGAR, HUBBALLI-580021.
8. SHASHIKALA W/O MADIVALAPPA MUGABASAVA
AGE: 72 YEARS, OCC: HOUSEHOLD,
R/O. HOSUR, TQ. SOUNDATTI,
DIST. BELAGAVI.
...RESPONDENTS
(BY SRI R.H. ANGADI, ADV. FOR C/R1-R4;
SRI ARUN L. NEELOPANT, ADV. FOR C/R5;
SRI M.A. DESHPANDE, ADV. FOR R6;
SRI PRAKASH K. JAWALKAR, ADV. FOR RESPONDENT NO.7;
RESPONDENT NOS.6, 7, 8 ARE LRS OF APPELLANT;
NOTICE TO RESPONDENT NO.8 IS SERVED)
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RFA No.100029 of 2015
C/W RFA No.100028 of 2015
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
THE CIVIL PROCEDURE COUDE, 1908, AGAINST THE JUDGMENT AND
DECREE DATED 07.11.2014 PASSED IN O.S.NO.72/2011 ON THE
FILE OF I ADDITIONAL SENIOR CIVIL JUDGE & C.J.M., DHARWAD,
DISMISSING THE SUIT FILED FOR DECLARATION AND RECOVERY OF
POSSESSION.
IN RFA NO.100028 OF 2015:
BETWEEN:
KIRAN MADIVALAPPA MUGABASAV
AGE: 29 YEARS, OCC: AGRICULTURE,
FLAT NO.105, ROSTAN HERITAGE APARTMENTS,
BEHIND AMRUT TALKIES,
VIDYANAGAR, HUBBALLI-580021.
...APPELLANT
(BY SRI PRAKASH K. JAWALKAR, ADVOCATE)
AND :
1. MOHAMMAD JAFAR
SON OF HUSSAINSAB KALLIMANI,
AGE: 43 YEARS, OCC: AGRICULTURE,
RESIDING AT KARIKATTI, ONI,
MALAPUR TALUKA, DHARWAD-580001.
2. DHAVALSAB MOHANLAL HUSSAINSAB KALLIMANI,
AGE: 41 YEARS, OCC: AGRICULTURE,
RESIDING AT KARIKATTI ONI,
MALAPUR TALUKA, DHARWAD-580001.
3. SHAHANAWAZ HUSSAINSAB KALLIMANI
AGE: 39 YEARS, OCC: AGRICULTURE,
RESIDING AT KARIKATTI ONI,
MALAPUR TALUKA, DHARWAD-580001.
4. AMIRJAN HUSSAINSAB KALLIMANI
AGE: 33 YEARS, OCC: AGRICULTURE,
RESIDING AT KARIKATTI ONI,
MALAPUR TALUKA, DHARWAD-580001.
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RFA No.100029 of 2015
C/W RFA No.100028 of 2015
5. MOHAMMAD ASHFAQ HUSSAINSAB KALLIMANI,
AGE: 48 YEARS, OCC: AGRICULTURE,
RESIDING AT KARIKATTI ONI,
MALAPUR TALUKA, DHARWAD-580001.
6. BEENA W/O MALLIKARJUN SHIRAMGOUDA,
AGE: 44 YEARS, OCC: PVT. SERVICE,
R/O.MUMBAI.
7. MADIVALAPPA SON OF KARIYAPPA MUGABASAVA
DECEASED R/BY HIS LEGAL HEARS.
7A. SMT. SHASHIKALA
W/O. LATE MADIVALAPPA MUGABASAV,
AGE: 70 YEARS, OCC: HOUSE WIFE,
RESIDING AT HOSUR VILLAGE,
TALUKA: SAUDATTI,
DISTRICT: BELAGAVI-591126.
7B. SMT. LEELA W/O. VISHNUDAS GHODKE
AGE: 44 YEARS, OCC: HOUSE WIFE,
RESIDING AT 1064/A WING,
PRABHA APARTMENT, SEJAL PARK,
NEAR GORGOAN, OSHIWARA,
DEPOT. GOREGOAN WEST MUMBAI-400008.
...RESPONDENTS
(BY SRI R.H. ANGADI, ADV. FOR C/R1-R4;
SRI ARUN L. NEELOPANT, ADV. FOR C/R5;
SRI M.A. DESHPANDE, ADV. FOR R6;
NOTICE TO RESPONDENT NOS.7(A) & 7(B) IS SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 07.11.2014 DISMISSING THE
ORIGINAL SUIT NO.72/2011 PASSED BY THE LEARNED
I ADDITIONAL SENIOR CIVIL JUDGE AND CJM., DHARWAD & ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.10.2024 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, SREENIVAS HARISH KUMAR J.,
DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
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RFA No.100029 of 2015
C/W RFA No.100028 of 2015
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR)
The judgment in O.S.No.72/2011 on the file of I
Additional Senior Civil Judge, Dharwad has given rise to these
two appeals, one by the plaintiff and the other by the 7th
defendant in the suit. RFA.No.100028/2015 is filed by the 7th
defendant and RFA.No.100029/2015 is filed by the plaintiff.
After the death of the appellant in RFA.No.100029/2015 his
daughter Leena came on record as legal representative.
Respondents 6 and 7 namely Beena and Kiran are also treated
as legal representatives. Appellant's wife Shashikala was
impleaded as Respondent no.8.
2. In RFA No.100028/2015 the plaintiff was arrayed as
respondent no.7 and in this appeal, Shashikala and Leena were
impleaded as his legal representatives.
3. The material facts pleaded by the plaintiff are like
this:
The name of plaintiff's wife is Shashikala. Defendant no.6
Beena is plaintiff's daughter and defendant no.7 Kiran is his
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son. The suit properties consist of agricultural lands in Block
nos.49, 50, 51, 54, 56, 57 and 142 of Yattinagudda village,
Dharwad Taluk. The measurements and boundaries of these
properties are shown in the plaint. The plaintiff and defendant
no.6 being a minor purchased the suit properties under a
registered sale deed dated 21.04.1973. The plaintiff himself
represented his minor daughter at the time of purchase.
Defendant no.6 attained majority in the year 1993. An entry
was made in the revenue records indicating that plaintiff was
discharged from the guardianship of his daughter, however his
name continued in the revenue records to the extent of his
share. The plaintiff's wife, namely Shashikala induced him to
enter the name of his minor son i.e., defendant no.7 in the
record of rights relating to the suit properties and heeding to
his wife's request he gave a report (varadi) to the village
account on 08.07.1993 to substitute his name by his son's
name and it was carried out. Since the son was a minor, the
name of plaintiff's wife Shashikala was shown as the guardian
of minor defendant no.7.
4. On 06.02.1995, defendant no.6 who had then
become a major, and Shashikala in the capacity of guardian of
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defendant no.7 entered into an agreement of sale with one
Mahadevappa Sankoji agreeing to sell the suit properties to the
latter for sale consideration of Rs.10,00,000/- and received
earnest money of Rs.2,00,000/-. But this sale agreement was
cancelled and then they executed another agreement of sale in
favour of one Mohammad Shafi and Mohammad Ashfaq
(defendant no.5) on 09.06.1997 agreeing to sell the suit
properties to him for consideration of Rs.11,50,000/-. The
purchasers paid Rs.4,00,000/- to them towards earnest money.
This Rs.4,00,000/- consisted of Rs.2,00,000/- which was
returned to the first agreement holder Mahadevappa Sankoji.
Having entered into agreement with Mohammad Shafi and
Mohammad Ashfaq, Shashikala and defendant no.6 handed
over possession of the suit properties to them. The plaintiff was
not a party to both the agreements. The plaintiff came to know
that defendant no.6 had executed a general power of attorney
on 08.06.1995 in favour of her mother i.e., Shashikala for the
purpose of managing the suit properties. He also came to know
that defendant no.6 had executed a relinquishment deed in
favour of defendant no.7 on 15.06.2006 in relation to her half
share in the suit properties, but since that relinquishment was
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not under a registered document, no title passed on to
defendant no.7 and therefore defendant no.6 continued to be
the absolute owner of her half share. On the basis of
unregistered relinquishment deed and a report that the plaintiff
had already given, defendant no.7 was shown as the only
owner and cultivator of the entire suit properties even though
he had not become absolute owner.
5. In the last week of March 2011 when the plaintiff
casually visited the suit properties, defendants 1 to 4 told him
that they had purchased the suit properties from defendant
no.7. Thereafter the plaintiff enquired defendant no.7 with
regard to the sale transaction and he pleaded ignorance of it.
The plaintiff then obtained certified copy of the sale deed dated
21.02.2011 and came to know that defendant no.5 being power
of attorney holder of defendant no.7 had executed a sale deed
in favour of defendants 1 to 4. The plaintiff also came to know
from defendant no.7 that the latter had not executed any
general power of attorney in favour of defendant no.5 and that
his signature might have been forged. This sale transaction was
void, illegal and fraudulent. There was collusion among
defendants 1 to 5 in coming into being of sale deed dated
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21.02.2011. In fact defendant no.7 had no right to execute the
sale deed. Therefore, the plaintiff brought the suit seeking
declaration that he and his daughter i.e., defendant no.6 were
the absolute owners of the suit properties, for declaration that
general power of attorney dated 13.09.2010 and the sale deed
dated 21.02.2011 were null and void and for the possession of
the suit properties from defendants 1 to 4.
6. Defendant no.5 filed the written statement and this
was adopted by defendants 1 to 4. Defendant no.6 was placed
ex parte and the written statement of defendant no.7 was
rejected as it was not filed within time.
7. Defendant no.5 admitted the purchase of the suit
properties by the plaintiff and defendant no.6, but denied the
plaint averment that the plaintiff was induced by his wife to
give a varadi to the revenue authority to enter the name of
defendant no.7. He admitted the two agreements dated
06.02.1995 and 09.06.1997 and delivery of possession of the
suit properties under the agreement dated 09.06.1997. He
pleaded specifically that these two suit properties stood in the
joint names of defendants 6 and 7 in the year 1997. Their
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mother i.e., Shashikala offered the suit properties for sale in
favour of one Hussainsab Dawalsab Kallimani, the father of
defendants 1 to 5 for a sale consideration of Rs.11,50,000/-
and at that time she disclosed the former agreement dated
06.02.1995 with Mahadevappa Sankoji. Hussainsab D.
Kallimani ascertained all the facts and then agreed to buy the
suit properties and accordingly agreement came into existence
on 09.06.1997. Then a supplementary agreement was
executed by Shshikala on 29.06.1997 in favour of Mohammad
Shafi and Mohammad Ashfaq after receiving additional earnest
money of Rs.2,50,000/-. Again Shashikala received further
amount of Rs.1,00,000/- from Hussainsab D.Kallimani and
executed one more supplementary deed on 01.01.1998 in
favour of Mohammad Shafi and Mohammad Ashfaq. By
10.09.2000, Shashikala had received total earnest money of
Rs.7,80,000/-.
8. It was contended by defendant no.5 that the
plaintiff filed O.S.No.449/1997 against his wife and two children
i.e., defendants 6 and 7 for permanent injunction to restrain
them from transferring the suit properties, but the suit was
dismissed. Because of pendency of that suit, sale transaction
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could not be completed. Hussaisab D.Kallimani also died on
04.04.2002. Therefore Shashikala executed one more
agreement on 29.01.2004 in favour of Mohammad Shafi and
Mohammad Ashfaq representing her minor son as a guardian,
and representing defendant no.6 in the capacity of general
power of attorney holder. She did not execute the sale deed as
agreed, instead she demanded for higher consideration because
of increase in the market value of the land. Defendants 1 to 5
agreed to pay Rs.20,00,000/- towards consideration. Thereafter
the marriage of defendant no.6 was arranged. In order to
facilitate execution of the sale deed after the marriage of
defendant no.6, Shashikala arranged for a varadi or report
being given by defendant no.6 to the Tahasildar, Dharwad to
delete her name from the revenue records. After this was
effected, Defendant no.7 went on postponing execution of sale
deed. In the year 2010 defendants 6 and 7 and their mother
Shashikala demanded for increasing the consideration amount
and ultimately consideration was fixed at Rs.38,29,000/-. Then
defendant no.7 executed a power of attorney in favour of
defendant no.5 empowering him to execute the sale deed on
his behalf and thus a sale deed in favour of defendants 1 to 4
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came into existence. Giving these details it was further stated
that the plaintiff had no right to institute the suit because he
himself got deleted his name from the revenue records in view
of family partition and that's how the name of defendant no.7
was entered in the revenue records. It was stated that
defendants 1 to 4 were bonafide purchasers. The judgment in
O.S.No.449/1997 attained finality and the suit was hit by res
judicata. With these contentions defendant no.5 prayed for
dismissal of the suit.
9. Upon appreciation of oral and documentary
evidence, the Trial Court answered main issues 1, 5 and 6 and
additional issue 1 against the plaintiff and dismissed the suit.
10. The findings of the Trial Court are that there is no
dispute that the plaintiff and defendant no.6 purchased the suit
properties and for this reason she was the owner to the extent
of her half share in them. The plaintiff's version that defendant
no.6 could not have relinquished her half share in favour of
defendant no.7 just by giving a varadi is not acceptable, for any
relinquishment to be made must be through a registered
instrument only. But defendant no.6 did not contest the suit.
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Despite the fact that there was no relinquishment by defendant
no.6 in favour of defendant no.7 according to law, the plaintiff
had no locus standi to question the said relinquishment by
defendant no.6, for defendant no.7 did not challenge the power
of attorney said to have been executed by him in favour of
defendant no.5 and the sale deed in favour of defendants 1 to
4. Ex.D.4 shows that the plaintiff lost right over his share of
suit property and therefore he cannot question the power of
attorney and the sale deed. Ex.D.4 evidences oral partition
having taken place. In these circumstances, the challenge to
the general power of attorney and the sale deed should have
been made by defendants 6 and 7, but they kept quiet. The
plaintiff himself has stated that his wife handed over the
possession of the suit properties to the purchaser under
agreement dated 09.06.1997 and this agreement was executed
by her in the capacity of power of attorney holder of her
daughter i.e., defendant no.6. Even though plaintiff has stated
that his son i.e., defendant no.7 gave an advertisement in
Kannada daily news paper dated 15.12.2010 cautioning the
public that he had not authorized anybody to deal with suit
properties on his behalf, he did not take any action by filing
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suit. In this view, when he kept quite, the plaintiff who had lost
right over the properties cannot institute suit.
11. Sri Dinesh M.Kulkarni learned counsel for the
appellant in RFA No.100029/2015 put forth the grounds that
the varadi said to have been given by the plaintiff to delete his
name from the revenue records and to enter the name of his
son does not stand in the eye of law because no relinquishment
can be made just by giving a varadi or report to the revenue
officer. Ex.D.4 is a report and it cannot be construed as a
document evidencing relinquishment of right. If subsequently
defendant no.6 relinquished right over her share in the suit
properties in favour of defendant no.7, it was also based on a
varadi which does not stand in the eye of law. For these
reasons defendant no.7 did not become of the absolute owner
of the suit properties. Even if he had executed a power of
attorney in favour of defendant no.5, the latter did not derive
any right to execute the sale deed in favour of defendants 1 to
4 in the capacity of general power of attorney holder and
therefore the sale deed dated 21.02.2011 is void ab-initio. He
was thus entitled to file a suit seeking declaration of his title
and to recover possession from defendants 1 to 4. The Trial
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Court has erroneously held that the plaintiff had no locus standi
to file the suit and therefore the appeal deserves to be allowed.
12. Sri Prakash K Jawalkar learned counsel for the
appellant in RFA.No.100028/2015 urged the same points put
forth by Sri Dinesh M.Kulkarni.
13. Sri Arun Neelopant learned counsel for respondent
no.5 / defendant no.5 in both the appeals firstly raised a
technical issue that after the death of the plaintiff/appellant
during pendency of the appeal, his legal representatives cannot
take a different stand in the sense that initially they did not
choose to contest the suit being defendants, and in the earlier
suit i.e., O.S.No.449/1997, they being defendants therein
opposed the plaintiff. Therefore they are precluded from
prosecuting the appeals.
13.1 The plaintiff cannot dispute his own varadi to claim
the relief of declaration of his title. It was not just a varadi, it
also revealed the fact of oral partition of the suit properties
effected by him. There is nothing wrong in making family
arrangement even orally and Ex.D.4 actually evidences this. By
virtue of Ex.D.4 his son i.e., defendant 7 became the absolute
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owner of plaintiff's half share in the suit properties. Thus seen,
defendant no.7 had right to appoint defendant no.5 as his
power of attorney and therefore the sale deed executed by
defendant no.5 in favour of defendants 1 to 4 cannot be
assailed. The very fact that plaintiff and defendant no.7 filed
two separate appeals shows collusion between them to defeat
the interest of the purchaser. Defendant no.7 ought to have
filed a separate suit if really he had not executed power of
attorney. In his father's suit he cannot dispute GPA. When his
written statement was rejected, he had no right to contest the
suit and to prefer the appeal.
13.2 If defendant no.6 has still right in the properties,
she should have filed the suit, but she too did not challenge the
sale deed and contest the suit also. The plaintiff cannot seek
declaration on her behalf. The Trial Court has noticed all these
aspects of the matter to dismiss the suit and there are no
infirmities in the well reasoned judgment.
13.3 He further argued that even though the Trial Court
has held that the suit was within time, it was actually barred by
time in as much as in the written statement filed in
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O.S.No.449/1997, the right of the plaintiff was clearly denied
and therefore the suit should have been filed within three years
from the date of filing of written statement in that suit. Putting
forth these contentions he argued for dismissal of the appeals.
14. The above arguments give rise to following points
for discussion:
i. Whether the wife and daughter of the plaintiff
can be treated as his legal representatives in
view of conflict of interest between them?
ii. Whether the appellant in RFA.No.100028/2015
has locus to prefer an appeal?
iii. Is the finding of the Trial Court that the
plaintiff lost his right in the suit properties by
virtue of an oral partition evidenced by Ex.D.4
correct?
15. Point No.1 :- The plaintiff died after he filed the
appeal. It is true that his wife and children are his legal
representatives being his natural heirs and are entitled to come
on record to further prosecute the appeal, but in the peculiar
set of circumstances, they cannot claim a right to prosecute the
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appeals on the analogy that can be deduced from Order XXII
Rule 4(2) of Code of Civil Procedure.
16. Whenever a legal representative of a defendant is
brought on record, he is entitled to take defence appropriate to
his character, but this right does not permit a legal
representative to take a defence inconsistent with defence
already taken by the defendant. This proposition is well
established. The Hon'ble Supreme Court, in Gajraj Vs. Sudha
and others [(1999) 3 SCC 109], has held as below:
"5. After perusing the orders of the trial Court
and of the High Court, we are of the view that on the facts
of this case, the High Court was not right in observing
that the proposed legal representatives can take up all
other defences arising from their individual rights. The
reason is that the respondents on more than one occasion
moved applications under Order 1, Rule 10, C.P.C. raising
contention to agitate their individual rights and those
applications were dismissed. The trial Court observed
thus:
The scope of an enquiry under Section 22, Rule 5 of
the C.P.C. is very limited. Moreover, this is a suit between
landlord and tenant. The plea taken by the proposed LRs
is inconsistent with the plea taken by the deceased
Vasantrao. They must proceed with the litigation from the
stage where the death of Defendant 1 had taken place.
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They are bound by the pleadings of their predecessor in
whose place they are to be substituted. A legal
representative substituted cannot set up a new or
individual right. He cannot take up a new and inconsistent
plea contrary to the one taken up by the deceased. The
proposed LRs stand in the shoes of the deceased
defendant and must accept their position adopted by their
predecessor. Besides this, the plea of right in the property
by birth in the ancestral property and the male
representative are the coparceners was taken by the
proposed LRs by moving applications Exhs. 114, 119 and
174 under Order 1, Rule 10, C.P.C. The applications Exhs.
114 and 119 were rejected by my learned predecessor by
passing a common order dated 13.2.1992 and Exh. 174
was rejected on 8.3.1994 by my learned predecessor. The
said orders were unsuccessfully challenged by the
proposed LRs before the Hon'ble High Court in civil
revision and thereafter review petition. Thus, the said
issue has now become final and cannot be reagitated by
the present LRs."
17. There is rationale behind this principle in the sense
that if he takes a stand contrary to what is already put forward
by the deceased defendant, he cannot agitate it standing in the
place of deceased person whom he represents. Now in this case
Madivalappa Kariyappa Mugabasava is the appellant in one
appeal and respondent no.7 in the other appeal. In the appeal
where he was respondent, sub-rule (2) of Rule 4 Order XXII is
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applicable and in the appeal, where he was the appellant same
analogy can be applied although in Order XXII Rule 3, a
provision similar to sub-rule (2) of Rule 4 is not there. Conflict
of interest between the deceased and the legal representatives
can be demonstrated by referring to previous proceedings.
O.S.No.449/1997 was the suit filed by the plaintiff Madivalappa
Kariyappa Mugabasava against his wife-Shashikala, son-Kumar
Kiran (defendant no.7 in the present suit) daughter-Beena and
one Amarappa K.Karadi, for the relief of permanent injunction
to restrain them from alienating the properties that are subject
matter of the instant case also. In that suit, he narrated the
acquisition of the properties by him and his daughter Beena
(Reena), and alleged that his wife and children were making
attempts to alienate the properties with the help of Amarappa
K.Karadi. Shashikala filed written statement mainly contending
that her husband had no right, title and interest in the suit
properties, and her written statement was adopted by her son
and daughter. That means, they opposed Madivalappa. Now in
the case on hand, Shashikala was not arrayed as defendant,
however son and daughter were arrayed as defendants 7 and 6
respectively. Defendant no.6 was placed ex parte and the
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written statement of defendant no.7 was rejected as it was filed
belatedly. Whatever it is, Shashikala and defendants 6 and 7
being defendants in the former suit opposed the plaintiff by
stating that there was absolute need to sell the properties and
in fact they denied the plaintiff's right over suit properties.
Thereafter properties were sold. So in this context conflict of
interest between them can be clearly noticed. Merely for the
reason that defendants 6 and 7 did not contest in the case on
hand, it can not be said that they indirectly sailed with the
plaintiff. Even if it can be presumed so, their defence in the
former suit precludes them from supporting the plaintiff and
hence Shashikala, defendant no.6 and defendant no.7 lose their
right to come on record in the place of the deceased plaintiff. If
they are permitted, its resultant effect is permitting them to
prosecute the appeal on their independent stand reflected in
the former suit, which is in variance with cause of action
pleaded by the plaintiff. Contextually reliance may be placed on
a judgment of the Supreme Court in the case of Smt.Ambalika
Padhi and another Vs. Sh.Radhakrishna Padhi and others
(AIR 1992 SC 431) cited by Sri Arun Neelopant. It is held;
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"13. We have heard counsel for the parties and
are of the considered opinion that the High Court was
wrong in allowing the appeals and dismissing the suit on
the so-called "preliminary objection", without going into
the merits of the appeals. The trial court has found both
the settlement and will in favour of the present plaintiffs
true and valid. The present plaintiffs are claiming under
the original plaintiff and are continuing the same suit.
They have not amended the basis of the suit or the reliefs
asked for. We are unable to see how their cause of action
is different from the cause of action of the original
plaintiff, merely because they are claiming to be legal
representatives under a settlement and a will. The
Division Bench considers that had the present plaintiffs
been natural heirs they would have been entitled to
continue the suit but, they say, since the present plaintiffs
are claiming on the basis of a deed of settlement and a
will, they cannot do so. With respect, we are unable to
understand this reasoning. The present plaintiffs were
indeed seeking to continue the suit as filed by the original
plaintiff and for the same reliefs as were claimed by her.
They were not claiming any other or different right.
Indeed, the settlement and will executed in their favour
were in issue in the suit filed by the original plaintiff
herself and findings were recorded affirming both the
deeds. The right claimed by the original plaintiff was not a
personal right. It was right to property which she settled
upon and bequeathed to the present plaintiffs. In such
circumstances, the "preliminary objection" raised by the
appellants in their appeals, which they did not raise in the
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suit, ought not to have been entertained-much less
accepted.
14. We may now briefly refer to the decisions relied
upon by the High Court in support of its propositions.
15. The first decision cited is in Mahindra Singh Vs.
Chander Singh (AIR 1957 Patna 79). The reference of this
decision is not given in the body of the judgment and,
therefore, it is not possible to deal with the principle of
the said judgment. However, two paragraphs from this
judgment are quoted in the judgment under appeal which
merely reiterate the well-established principle that a legal
representative can only prosecute the cause of action as
originally framed in the suit and that if it becomes
apparent that the original cause of action is being
substituted by another cause of action the matter must be
directed to be agitated by way of a separate suit......."
(Emphasis supplied)
18. Thus it can be seen that the prohibition applicable
for the legal representative of defendant can be equally made
applicable to the legal representative of plaintiff although in
Rule 3 of Order XXII, there is no provision like sub-rule (2) to
Rule 4 of Order XXII. If it is found that the interest of the legal
representative of plaintiff is in conflict with cause of action
pleaded in the plaint, such a legal representative cannot be
permitted to come on record, and even if he comes on record,
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at any stage, once conflict is noticed, appropriate inferences
can be drawn including recording of abatement of the suit or
appeal.
19. For the above reason, in this case Shashikala and
defendants 6 and 7 do not become legal representatives to
prosecute the appeal further after the death of the plaintiff and
only another daughter of the plaintiff namely Leela or Leena,
who was not a party in the former suit and is not arrayed a
party in the present suit can alone be recognized as legal
representative of the plaintiff. Point no.1 is answered
accordingly.
20. Point No.2 :- Appellant in RFA No.100028/2015 is
defendant no.7 in the suit. He filed his written statement, but it
was rejected as it was belatedly filed. Order of rejection of his
written statement attained finality. Although plaintiff pleaded
that defendant no.7 did not appoint defendant no.5 as his
power of attorney and for that reason sale deed in favour of
defendants 1 to 4 executed by defendant no.5 was bad, from
that plea defendant no.7 did not derive a right to prefer an
appeal challenging the judgment in the suit, in which he is one
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of the defendants and, which is founded on a premise that
defendant no.7 did not derive any title under unregistered
relinquishment deed. He ought to have filed a separate suit if
any right or title existed in him, and therefore he can not
maintain a separate appeal. Point No.2 is answered in negative.
21. Point No.3 :- Defendants 1 to 5 do not dispute
purchase of suit properties by the plaintiff and his daughter i.e.,
defendant no.6. They do not admit the plaintiff's version that
he was induced by his wife to give a varadi or report to revenue
officer to delete his name and enter the name of his son i.e.,
defendant no.7 in the revenue records. In this regard what
they have stated is that an oral partition was effected by the
plaintiff and pursuant to it, name of defendant no.7 was
entered. Defendants 1 to 4 also state that defendant no.6
relinquished all her rights in favour of her brother i.e.,
defendant no.7 by giving a varadi.
22. Before discussing factual aspects, one legal aspect
has to be clarified. Not only in this case, but in many other
cases, it has been observed by us that a mere report or varadi
was treated as relinquishment of right for entering the name of
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a person in whose favour relinquishment was made. This kind
of practice is more prevalent in northern Karnataka. In many a
judgment, this Court has made the legal aspect very clear that
a mere varadi cannot be considered as a document evidencing
relinquishment or release of right, title and interest by one
person in favour of another. Any release in respect of a
immovable property worth more than Rs.100/- must be made
through registered instrument only. Or if oral partition is
pleaded for effecting change in revenue records, there must be
proof for oral partition and it having been acted upon. In the
absence of registered instruments, relinquishment or release
deed cannot be accepted by the revenue officers for effecting
mutation in the revenue records.
23. Now in this case, plaintiff and defendant no.6
purchased the suit properties. Defendant no.6 did not file a
separate suit, instead plaintiff sought the reliefs for himself and
defendant no.6. Firstly it must be examined whether plaintiff
simply made a varadi at the instance of his wife, or it was
pursuant to an oral partition as contended by defendants 1 to
5. Ex.D.4 was produced by the defendants to prove that
plaintiff made an application to the village accountant to enter
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the name of his son based on oral partition. The plaintiff who
adduced evidence as PW.1 was suggested in the cross-
examination that he himself made a varadi stating that an oral
partition had taken place in his family. He denied this
suggestion, but however admitted that he gave a varadi. When
Ex.D.4 was confronted, he admitted its contents to be true.
That means he is bound by his admission. Ex.D.4 by itself does
not evidence oral partition having taken place. It bears the date
08.07.1993 and states that an oral partition had been effected
by the plaintiff about 6 years prior to 08.07.1993. That means
Ex.D.4 is a proof for past oral partition, which is recognized
under Hindu Law. By virtue of Ex.D.4, the plaintiff's right, title
and interest devolved on defendant no.7 and the latter became
the absolute owner and held the suit properties jointly with
defendant no.6.
24. But so far as defendant no.6 is concerned, it is
stated that she relinquished her right in favour of defendant
no.7 by giving a varadi, which is not permitted in law and there
by her right was not affected.
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25. Whether defendants 1 to 4 became absolute owners
of suit properties must be examined in the background of the
scenario discussed above. The plaintiff himself stated about two
agreements of sale dated 06.02.1995 and 09.06.1997. The first
agreement was cancelled, there is no dispute about it. It was
pursuant to another agreement of sale dated 09.06.1997,
defendants 1 to 4 purchased the suit property, and this aspect
is not disputed. Question is whether right, title and interest
were acquired by defendants 1 to 4. The second agreement
was executed by Shashikala in the capacity of guardian of her
minor son i.e., defendant no.7, and defendant no.6. It is not in
dispute that possession of suit properties were delivered to
defendants 1 to 4 under the agreement, that means delivery of
possession was not unlawful. But by the time sale deed was
executed on 21.02.2011, defendant no.7 was not a minor;
defendants 1 to 5 contend that defendant no.6 relinquished her
right in favour of defendant no.7 by giving a varadi, by virtue of
which he became absolute owner of all the suit properties and
therefore he appointed defendant no.5 as his power of attorney
to execute sale deed in favour of defendants 1 to 4. Here two
consequences ensue. Firstly defendant no.7 did not acquire any
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interest or title on the basis of varadi said to have been given
by defendant no.6, thereby her right and title was not affected.
Insofar as other half is concerned, he was the absolute owner
which he could transfer. But he did not challenge the sale or
the power of attorney which is said to have been executed by
him in favour of defendant 5. Plaintiff has stated that defendant
no.7 did not appoint defendant no.5 as his power of attorney
and that signature of defendant no.7 might have been forged.
Plaintiff also produced Ex.P.16, a public notice dated
14.12.2010, published in the news paper dated 15.12.2010 to
show that defendant no.7 had not appointed anybody as his
power of attorney. If it was so, defendant no.7 should have
filed the suit instead of plaintiff. The inference to be drawn in
these circumstances is that in all probability, defendant no.7
might have executed power of attorney in favour of defendant
no.5 who in turn executed sale deed in favour of defendants 1
to 4. In this view, impugned sale deed was not affected in so
far as the right and title of defendant no. 7 was concerned.
26. It is true that the right and title of defendant no.6
remained intact. But she parted with possession of the suit
properties joining hands with her mother Shashikala who
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represented defendant no.7 who was a minor at that time. For
this reason she should have taken independent legal action to
recover possession if there was no delivery of possession in
accordance with Section 53A of Transfer of Property Act.
Curiously plaintiff brought the suit not only on his behalf but on
behalf of defendant no.6 also. He had no right to sue on behalf
of defendant no.6 although she is his daughter. In fact plaintiff
had no right at all to file suit in his individual capacity. For
these reasons the Trial court is justified in dismissing the suit.
It may not have given elaborate reasons, however, its
conclusion to dismiss the suit needs no interference in these
appeals. Point No.3 is therefore answered affirmatively.
27. Sri Arun Neelopanth also argued that suit was time
barred, and in this regard the finding of the Trial Court that the
suit was not time barred is to be set aside. This part can
definitely be urged without filing cross-objection in terms of
Order XLI Rule 22 of CPC. If at all plaintiff had any right over
suit properties, he should have filed the suit within 3 years
from the date of filing of written statement by the defendants
in O.S.No.449/1997 because by that time the plaintiff's title
had been eclipsed. In this view suit was time barred.
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Therefore from forgoing discussion, the conclusion is that
both appeals are to be dismissed and ordered accordingly.
Respondents i.e., defendants 1 to 5 are entitled to costs of the
appeals.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(T. G. SHIVASHANKARE GOWDA)
JUDGE
EM
