Karnataka High Court
Prakash Laxman Thoruse vs Gajanan Sambha Shinde on 22 November, 2024
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RFA No. 4087 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 4087 OF 2013 (DEC)
BETWEEN:
1. SHRI. PRAKASH LAXMAN THORUSE,
AGE: 54 YEARS,
OCC: AGRICULTURE & SERVICE,
R/O. UGARKHURD-591 316
TQ: ATHANI, DIST: BELGAUM.
2. SHRI. DILEEP LAXMAN THORUSE,
AGE: 50 YEARS,
OCC: AGRICULTURE,
R/O. UGARKHURD - 591 316
TQ: ATHANI,
DIST: BELGAUM.
...APPELLANTS
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE)
ASHPAK
KASHIMSA
MALAGALADINNI
AND:
1. SHIR. GAJANAN SAMBHA SHINDE,
Location: AGE: 35 YEARS,
HIGH
COURT OF OCC: AGRICULUTRE,
KARNATAKA
R/O: UGARKHURD - 591316
TQ: ATHANI,
DIST: BELGAUM.
2. SHRI. RAJENDRA SAMBHA SHINDE,
AGE: 32 YEARS,
OCC: AGRICULTURE,
R/O. UGARKHURD - 591316
TQ: ATHANI DIST: BELGAUM.
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RFA No. 4087 of 2013
3. SUNANDA W/O. SAMBHA SHINDE
AGE: 57 YEARS,
OCC: HOUSEHOLD WORK and
AGRICULTURE,
R/O. UGARKHURD - 591 316
TQ: ATHANI DIST: BELGAUM.
(DEAD)
4. SMT. SAVITA W/O. DATTATRAY BHOSALE,
AGE: 34 YEARS,
OCC: HOUSEHOL,
R/O. RANJANI - 416411
TALUKA: KAVATHE-MAHANKAL,
DIST: SANGLI, MAHARASHTRA STATE.
5. SHRI. PRAKASH GORAKH SHINDE,
AGE: 33 YEARS,
OCC: AGRICULTURE,
R/O. UGARKHURD-591316,
TQ: ATHANI,
DIST: BELGAUM.
6. KAMALA W/O. GORAKH SHINDE,
AGE: 47 YEARS,
OCC: HOUSEHOLD WORK & AGRICULTURE,
R/O. UGARKHURD-591316,
TQ: ATHANI,
DIST: BELGAUM.
SHRI. GORAK TUKARAM SHINDE,
DEAD RESPONDENTS 5 & 6 ARE HIS LEGAL
REPRESENTATIVES & THEY ARE ALREADY
ON RECORD.
...RESPONDENTS
(BY SRI. B.S. KAMATE, ADVOCATE C/R1 TO R6)
----
THIS RFA IS FILED UNDER SEC.96 R/W. ORDER XLI RULE 1 OF
CPC 1908., SET ASIDE THE JUDGMENT AND DECREE DATED
06.04.2013 PASSED BY THE PRL. SENIOR CIVIL JUDGE, ATHANI IN
O.S.55/2001 AND ALLOW THE APPEAL WITH COSTS THROUGHOUT
BY DISMISSING THE SUIT OF RESPONDENTS IN O.S.NO.55/2001 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, ATHANI.
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RFA No. 4087 of 2013
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
1. This appeal is against a decree for partition,
declaration and injunction.
2. The suit property measures 9 acres 31 guntas in
survey No. 261/1A/2A of Ugarkhurd, Taluk Athani.
The defendants No.1 and 2 are in appeal. Defendant
No.3 died during the pendency of the suit. Since
plaintiffs No.4 and 5 were the legal representatives
of deceased defendant No.3, no application was filed
to substitute the legal representatives of the
deceased defendant No.3.
3. Admittedly, Gorakh and Sambha were brothers.
Gorakh and Sambha have executed a registered sale
deed. Defendants No.1 and 2 claim that they have
purchased 4 acres and 34 guntas from Gorakh and
Sambha under two different registered sale deeds
dated 04.05.2001. Both sale deeds are executed by
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Sambha and Gorakh. One sale deed is in favor of
the first defendant, and another sale deed is in
respect of the second defendant. In one sale deed in
favor of the first defendant, 2 acres and 17 guntas
on the southeastern side of the property in Survey
No.261/1A/2A is sold. In another sale deed in favor
of the second defendant, 2 acres and 17 guntas on
the northeastern side of the property in Survey
No.261/1A/2A is sold. The consideration amount
mentioned in each sale deed is ₹3,17,000/-.
4. Plaintiffs No.1 and 2 are the sons of Sambha, Plaintiff
No.3 is the wife of Sambha and plaintiff No.4 is the
daughter of Sambha. Sambha died on 23.05.2001,
15 days after the execution of sale deeds. Hence,
his legal heirs have filed a suit challenging the
alienation.
5. Plaintiffs No.5 and 6 are the son and wife of Gorakh,
another vendor. When the suit was filed, Gorakh was
alive and was arrayed as defendant No.3.
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6. Admittedly, the suit properties are the ancestral
properties in the hands of Sambha and Gorakh. The
defendants No.1 and 2, who claimed to have
purchased the property from Sambha and Gorakh
under the aforementioned sale deeds, took a defence
that Sambha and Gorakh executed the sale deeds in
the capacity of karta of their respective branches. It
is their contention that the property was sold for
legal necessity.
7. The suit is filed on the premise that there was no
legal necessity for Sambha and Gorakh to sell the
property and that the sale is not in the interest of the
family. It is also contended that Gorakh and Sambha
had no authority to alienate the property of the
plaintiffs. In addition, it is also contended that
Gorakh and Sambha both were addicted to alcohol,
and the sale deed was executed in a drunken state
where Gorakh and Sambha were not in a position to
understand the consequences.
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8. It is alleged that the consideration amount was not
paid to either Gorakh or Sambha. Thus, the plaintiffs
contend that they are in possession of the property
and sought declaration and injunction.
9. Defendant No.3, one of the vendors, namely Gorakh,
did not contest the matter and remained ex-parte.
10. The purchasers contended that the sale was for the
benefit of the family and that the vendors alienated
the property as kartas of the respective branches,
and the entire consideration amount was paid.
11. The Trial Court concluded that the transaction was
not for the benefit of the family. The purchasers
failed to prove the existence of legal necessity. The
Trial Court also held that the consideration amount
was not paid and granted the relief of declaration of
title and injunction. Aggrieved by the judgment and
decree, defendants No.1 and 2 are in appeal.
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12. Sri. Sangram Kulkarni, learned counsel appearing for
the appellants/defendants No.1 and 2, would contend
that the family of Sambha and Gorakh was in debt,
and both Sambha and Gorakh sold the property in
the year 1990 to discharge the loan that was
prevailing in 1990. The said sale deed was not
questioned by the plaintiffs and again, when the
family was in debt, to discharge the family debt, the
properties were sold by Sambha and Gorakh under
the registered sale deed dated 4th May 2001. He
would contend that Gorakh did not appear and
contest the suit and this amounts to an admission of
the sale transaction by Gorakh. The Trial Court
committed an error in declaring the entire sale deed
invalid despite proof of legal necessity.
13. In the alternative, he contended that the Trial Court
could not have set aside the sale deed to the extent
of the share possessed by Sambha and Gorakh,
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particularly in a situation where Gorakh has not
questioned the sale deed.
14. It is also his contention that the claim that Sambha
and Gorakh were in a state of intoxication when the
sale deed was executed is not established. The very
fact that the sale deed is duly registered would
demonstrate that no such illegal transaction has
taken place, as alleged.
15. Sri. B. S. Kamate, learned counsel appearing for the
plaintiff/respondents would contend that, Sambha
and Gorakh were not the family managers (karta) of
their respective families. There was no legal
necessity to sell the property. The legal necessity is
not established, and in addition, the circumstances
brought before the Court, which were discussed by
the Trial Court, would clearly demonstrate that the
consideration amount was not passed to either
Sambha or Gorakh. The Trial Court is justified in
holding that the entire sale transaction is invalid.
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16. He would also contend that, even if the family debt is
established, that itself is not sufficient, and it is for
the purchaser to establish that the debt was raised
for legal necessity and that the debt is not an
immoral debt. Even if the sale transaction has taken
place to discharge the immoral debt of Gorakh and
Sambha, such a transaction cannot be said to be a
transaction which is permitted or recognized under
Hindu law by a karta. Thus, he would contend that,
in the absence of any proof relating to the debt, the
Trial Court is justified in holding that there was no
legal necessity.
17. It is also contended that, according to defendants
No.1 and 2, the discussion about the sale transaction
commenced a day before registration, and the
alleged discussion was over within half an hour, and
on the same day, a huge amount of ₹6,34,000/- is
said to have been paid without any receipt and on
the very next day, the sale deed was registered. The
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recital in the sale deed again does not indicate that
the amount of ₹6,34,000/- was paid on the previous
day. By looking into all these aspects, the Trial Court
has rightly held that the defence is not established
and would urge to dismiss appeal.
18. This Court has considered the contentions raised at
the Bar and perused the records. The following points
arise for consideration:
i. Whether the appellants establish that the
properties were sold by Sambha and
Gorakh for legal necessity?
ii. Whether the Trial Court is justified in
setting aside the entire sale deed,
including the sale deed covering the extent
of the share held by Sambha and Gorakh?
19. As far as the burden of proof relating to sale for
family necessity is concerned, the law is well-settled.
The burden is on the purchaser to prove family
necessity. Accordingly, the Trial Court reframed the
issue, which was earlier cast imposing the burden on
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the plaintiffs, and later the burden is cast on
defendants No.1 and 2.
20. Sri. Sangram Kulkarni, learned counsel appearing for
the appellants, would contend that the recital in the
sale deeds itself is more than sufficient to hold that
there was a family necessity to sell the property.
However, the settled position of law is otherwise. The
recital in the sale deed by itself is not proof of family
necessity. The existence of a debt and the
circumstances compelling the sale of the property
must be properly pleaded and established. When a
person is asserting that the property was sold for
family necessity, and when a person claims that he
has purchased the property from the family
manager, the purchaser has to establish that there
was a family necessity to sell the property.
21. On appreciation of evidence, it is noticed that the
purchaser is unable to establish the existence of
family debt which compelled Sambha and Gorakh to
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sell the property for ₹6,34,000/-. There is nothing on
record to show as to what exactly was the amount of
the loan the family of Gorakh and Sambha owed to
others. In such a situation, the Trial Court is justified
in holding that the burden cast on defendants No.1
and 2, relating to proof of family necessity, is not
discharged by defendants No.1 and 2. This Court
does not find any reason to interfere with that
portion of the impugned judgment and decree.
22. The next question is whether the plaintiffs have
established that the entire sale deed is invalid for
want of consideration amount.
23. It is relevant to note that defendant No.3, one of the
vendors, though served with notice, has remained
ex-parte and did not contest the suit. It is also
relevant to note that, he did not file any suit
challenging the alienation. The plaintiffs do not get
any right to challenge the alienation made by Gorakh
as long as Gorakh was alive. Gorakh died during the
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pendency of the suit and during his life time, he has
not questioned the alienation. At least by appearing
before the Court, he could have filed a counterclaim
disputing the claim made by defendants No.1 and 2,
where they have taken a stand that the property was
sold by Gorakh and Sambha by receiving the
consideration amount mentioned in the sale deed. He
has not chosen to do so. He has not cross-examined
defendants No. 1 and 2, who made a claim that the
sale took place for a valid consideration amount.
24. This being the position, this Court is of the view that,
in the absence of a challenge to the sale deed by
Gorakh, the Trial Court could not have held that the
sale deed in respect of Gorakh's share is invalid.
25. It is also relevant to note that, the plaintiffs have
alleged that both Gorakh and Sambha were addicted
to alcohol and, under the influence of alcohol, the
sale deed was got executed by practicing fraud. To
substantiate this contention, credible evidence has
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not been led. It is relevant to note that, both sale
deeds in favor of defendants No.1 and 2 by Gorakh
and Sambha were executed on the same day. The
sale deed is duly registered. In the absence of
credible evidence to believe that both Sambha and
Gorakh were under the influence of alcohol on the
date of registration of the sale deed, the Court would
attach a presumption to the validity of the process of
registration. The endorsement on the deed would
indicate that the sale deed was presented for
registration by the purchaser, and the contents were
admitted by Sambha as well as Gorakh.
26. Hence, this court is of the view that the finding of the
Trial Court invalidating the sale deed to the extent of
Gorakh's share is liable to be set aside and is
accordingly set aside.
27. As far as the claim of plaintiffs No.1, 2 and 3, who
have filed a suit after the death of Sambha, is
concerned, they are entitled to challenge the sale
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deed executed by Sambha even to the extent of the
share held by Sambha. However, they are required
to establish that Sambha was under the influence of
alcohol when the sale deed was executed and that he
was not in a position to understand the
consequences. They must also establish that the sale
consideration amount was not paid to Sambha.
28. This Court has considered the evidence led before
the Trial Court. Though it has been suggested in the
cross-examination that no consideration amount was
paid, both DW1, a purchaser and DW2, a witness to
the sale deed, have stated that the consideration
amount was paid. DW3, the scribe, has also stated
the same. It is further relevant to note that, when
the plaintiffs were cross-examined regarding the
consideration amount paid, the plaintiffs pleaded
ignorance relating to the suggestion made by the
counsel for defendants No.1 and 2, who suggested
that the consideration amount was paid. The
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plaintiffs did not state in the cross-examination that
the consideration amount was not paid. When it
comes to registration, PW1 has stated that he is not
aware of the registration. The evidence of PW1 in
cross-examination shows ignorance and it does not
state that the registration has not taken place and
that the consideration amount was not paid.
29. Though it is urged by Sri. Kamate, learned counsel
for the respondents, that the circumstances
themselves would indicate that the consideration
amount of ₹6,34,000/- could not have been arranged
in a span of a day when Sambha and Gorakh
allegedly offered to sell the property, and the
property was sold on the very next day under a
registered sale deed, this court is of the view that the
statement made by defendants No.1 and 2, relating
to their income from agricultural land and income
from defendant No.1 working in a sugar factory, is
not seriously disputed.
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30. Though it is urged that the contention of defendants
No. 1 and 2 that ₹6,34,000/- is paid a day before the
registration of the sale deed without obtaining a
receipt, the very fact that the very next day the sale
deed is executed, would indicate that the
consideration amount must have been paid by
defendants No.1 and 2. If the consideration amount
was not paid, there would have been no reason for
defendants No.1 and 2 to go to the office of the Sub-
registrar and admit the execution of the sale deed.
31. It is also relevant to note that both sale deeds have
been executed on the same day and by the same
vendors, and in both the sale deeds, both Sambha
and Gorakh were joint executants. Since Gorakh
himself has not raised a contention that no
consideration amount was paid, and also considering
the fact that Sambha, in his lifetime, survived for
about 15 days after the execution of the sale deed
and has not filed any complaint alleging any sort of
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fraud, this Court is of the view that the finding of the
Trial Court that the consideration amount was not
paid has to be set aside and is accordingly set aside.
32. This being the position, for the aforementioned
reasons, the sale deed executed by Sambha and
Gorakh would be valid to the extent of their share.
33. Now, the Court has to consider as to what will be the
share of Sambha and Gorakh.
34. During the course of the hearing, it is brought to the
notice of this Court that a suit for partition was filed
by the sister of Sambha and Gorakh, and also the
stepmother of Sambha and Gorakh. It is stated that
the stepmother married Sambha and Gorakh's father
after the demise of the mother of Sambha and
Gorakh, and her marriage is a valid marriage. It is
further stated that the suit was filed by the
stepmother and sister of Sambha and Gorakh in
O.S.No.225/1985, and the same was decreed in
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1992. It was declared that the stepmother has
5/16th share in the suit properties, and the daughter
from the second wife of the propositus, Nirmala, is
having 1/16th share in the suit properties. Thus,
Sambha will be having 5/16th share, Gorakh will be
having 5/16th share, Susheela - the stepmother, will
be having 5/16th share and Nirmala will be having
1/16th share. The decree has attained finality in
terms of the decree passed in FDP No.5/2007 on the
file of the II Additional Civil Judge, Athani.
35. Since the properties are ancestral properties,
plaintiffs No.1, 2, and 3 will have a share in the
property of Sambha by birth in the family, and so
also plaintiffs No.4 and 5 will have a share in the
property of Gorakh by birth in the family. If that
aspect is taken into consideration, Sambha will have
a 5/64th share in the suit property, Gorakh will have
a 5/68th share in the suit property, and to the said
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extent of the share held by Sambha and Gorakh in
the sale deed has to be upheld.
36. It is also relevant to note that, the present appellants
are purchasers of undivided shares. The law in this
regard is well settled. Whenever a person purchases
an undivided share from one of the joint family
member/s, the remedy for that person is to file a suit
for partition and separate possession against the
remaining joint owners. However, in this case, the
suit is filed by the heirs of Sambha and Gorakh,
claiming declaration of title and injunction. Since
this Court has taken the view that the sale by
Sambha and Gorakh is valid to the extent of their
share, this Court in exercise of power under Order 41
Rule 33 of the Code of Civil Procedure, would deem it
appropriate to pass a decree for partition in favor of
the appellants instead of driving the appellants to file
one more suit. Since the rights of the parties have
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been conclusively adjudicated, one more suit by the
purchasers is not warranted.
37. It is also brought to the notice of this Court that the
final decree proceedings is concluded. Admittedly
the appellants are the purchasers of the property
subsequent to the decree passed in a suit for
partition filed by Susheela and Nirmala. Thus, they
are bound by the decree. Unfortunately, in the final
decree proceedings, the purchasers were not made
parties. For this reason, this Court is of the view
that the appellants shall be permitted to move an
application in FDP No.5/2007 to reopen these
proceedings and seek division of their respective
shares as indicated above.
38. Hence the following:
ORDER
i. Appeal is allowed in part.
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ii. The judgment and decree dated 06.04.2013, in
O.S.No.55/2001, on the file of Principal Senior
Civil Judge, Athani, are set aside.
iii. The suit of the plaintiffs is decreed as under:
a. The sale deed dated 05.05.2001, executed
by Sambha and Gorakh in favor of
defendants No. 1 and 2, is declared null and
void to the extent of the share of the
plaintiffs. The sale is valid to the extent of
the share of Gorakh and Sambha, as
indicated above.
b. The purchasers/appellants are entitled to file
an application to reopen the final decree
proceedings for partition and separate
possession of their share, as indicated
above.
c. It is further made clear that once an
application is filed to reopen the final decree
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proceedings, Susheela and Nirmala shall be
notified.
d. If the possession is already given to
Susheela and Nirmala in the suit property,
the purchasers are not entitled to claim
share in that particular portion. The
purchasers are entitled to claim share in any
other portion not allotted to Susheela and
Nirmala.
iv. No order as to costs.
v. Registry to send back the Trial Court Records.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
gab
CT:ANB
