Karnataka High Court
Laxmibai vs Krishnaji on 29 October, 2024
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RFA No. 2318 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 2318 OF 2007 (PAR-)
BETWEEN:
1. LAXMIBAI,
W/O. RUDRAPPA PATTAR,
AGE: 62 YEARS,
RESIDING AT MUCHANDI,
TALUK: BELGUAM,
DIST: BELGAUM - 590001.
(DEAD BY HIS LR'S APPELLANT NO.2 &3)
2. SRI. RAJU,
W/O. RUDRAPPA PATTAR,
AGE: 38 YEARS,
RESIDING AT MUCHANDI,
TALUK: BELGUAM,
DIST: BELGAUM - 590001.
ASHPAK
KASHIMSA
MALAGALADINNI
3. SHRI. NANDKUMAR,
S/O. RUDRAPPA PATTAR,
AGE: 36 YEARS,
Location: RESIDING AT MUCHANDI,
HIGH TALUK: BELGUAM,
COURT OF
KARNATAKA DIST: BELGAUM - 590001.
...APPELLANTS
(BY SRI. NARAYAN V. YAJI, ADVOCATE)
AND:
1. KRISHNAJI,
S/O. RAMACHANDRA PATTAR @ POTDAR
AGE: 85 YEARS, OCC: RETD. SERVICE,
RESIDING AT MUCHANDI,
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NC: 2024:KHC-D:15809
RFA No. 2318 of 2007
TALUK: BELGUAM,
DIST: BELGAUM - 590001.
2. SRI. SRIKANT,
S/O. SHANKAR PATTAR @ POTDAR
AGE: 58 YEARS,
RESIDING AT MUCHANDI,
TALUK: BELGUAM,
DIST: BELGAUM - 590001.
3. SMT. HEERABAI,
W/O. PANDURANG PATTAR @ MUCHANDIKAR,
AGE: 55 YEARS,
RESIDING AT MUCHANDI,
TALUK: BELGUAM,
DIST: BELGAUM - 590001.
4. SRI. SANJAY,
S/O. PANDURANG PATTAR @ MUCHANDIKAR,
AGE: 36 YEARS,
RESIDING AT MUCHANDI,
TALUK: BELGUAM,
DIST: BELGAUM - 590001.
5. SRI. DHANANJAY,
S/O. PANDURANG PATTAR @ MUCHANDIKAR,
AGE: 32 YEARS,
RESIDING AT MUCHANDI,
TALUK: BELGUAM,
DIST: BELGAUM - 590001.
...RESPONDENTS
(BY SRI. VITTHAL S. TELI, ADVOCATE FOR R-2)
THIS RFA IS FILED U/O 41 R 1 R/W SEC. 151 OF CPC., PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO.273
OF 2001 DATED 20.02.2007, ON THE FILE OF I ADDL. CIVIL JUDGE
(SR.DN), BELGAUM, WITH COST, THROUGHOUT IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:15809
RFA No. 2318 of 2007
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is arising from a decree for partition in a
suit filed by the purchasers for partition of undivided share.
2. It is stated that the plaintiffs purchased half
share in the suit property under the registered sale deed
dated 28.07.1993 for a consideration of Rs.5,000/- and a
sale deed was executed by defendant No.4 on her behalf
and also on behalf of defendants No.5 and 6 who were
minors at the time of execution of sale deed.
3. The relationship of the parties is not in dispute.
Defendants No.4, 5 and 6 represent the branch of
Pandurang Pattar who died in 1974. At the time of his
death, Pandurang Pattar had half share in the suit property.
The remaining half share belonged to the branch of
Balakrishna. Defendants No.1 and 2 represent the branch of
Balakrishna.
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4. The admitted factual position is there was no
partition in the branch of Balakrishna and Siddappa. Thus,
the sale on 28.07.1993 by defendants No.4 to 6 is in
respect of undivided half share held by defendants No.4 to
6. In the aforementioned factual background, the plaintiffs,
who purchased the property under the registered sale deed
dated 28.07.1993, filed a suit for partition claiming half
share in the suit property.
5. The defendants No.1 to 3 contested the suit. It is
primarily contended that defendants No.4 to 6 could not
have sold the property without there being a partition in the
family. It is also contended that the defendants No.1 to 3
have a preferential right to purchase the portion of the suit
property sold by defendants No.4 to 6. It is also urged that
permission is not obtained to purchase before selling the
property in favour of the plaintiffs as such, the sale
transaction is void.
6. The Trial Court, after considering the evidence
led by the parties, concluded that the sale deed is valid and
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the defendants No.1 to 3 did not have any preferential right
to purchase the property and also concluded that there is
no need to obtain permission to sell the undivided share of
defendants No.5 and 6 who were the minors.
7. Accordingly, the suit is decreed granting decree
for partition of half share. The defendants No.1 to 3 are in
appeal.
8. Learned counsel for the appellant, Sri. Narayan
V. Yaji would submit that the Trial Court committed an error
in granting a decree for partition since the plaintiffs had
purchased the property which was not yet divided between
the branches of Balakrishna and Siddappa. It is also his
submission that defendants No.5 & 6 were minors when the
property was sold and no permission was obtained from the
Court before alienating the minors' share. Thus, he would
contend that the said transaction is void, and the plaintiffs
do not acquire any right over the property. It is also his
contention that the appellants/defendants No.1 to 3 had a
preferential right to purchase the property of defendants
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No.4 to 6 and without offering the property to the
appellants, the defendants No.4 to 6 could not have sold
the property to the plaintiffs.
9. Sri. Vitthal Teli, the learned counsel appearing
for the contesting plaintiffs/respondents would submit that
under Hindu Law, there is no prohibition to sell the
undivided share. It is also his submission that the property
being an ancestral property and not the separate property
of minors, Section 8 of the Hindu Minority and Guardianship
Act, 1956 has no application in respect of the coparcenery
property and there is no need to obtain the permission. It is
his further submission that a preferential right to purchase
the property is not available to the appellants, as the
appellants are not the Class-I heirs of defendants No.4 to 6.
It is also contended that the alienation of the property by
defendants No.4 to 6 is not in dispute, as such, the Trial
Court is justified in granting a decree for half share.
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10. After considering the submissions made at the
Bar and after considering the records, this Court is of the
view that the following points would arise for consideration:
i) Whether the appellants establish that sale in
favour of the plaintiffs/respondents is void for
want of permission from the competent Court?
ii) Whether the appellants establish that they have
a preferential right to purchase the property of
defendants No.4 to 6?
11. As far as the contention relating to want of
Court's permission to sell minors' property is concerned, the
law is well settled. It is only in respect of minor's separate
property, before alienating the property, the Guardian is
required to obtain permission from the competent Court,
whereas in case of the property which is jointly inherited by
the minor, along with other heirs, then the person acting as
a Guardian can alienate the undivided share of the minor.
In such an event, the Court's permission is not required.
The Trial Court has noticed judgment of Co-ordinate Bench
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of this Court in the case of A.Chidananda Vs. Smt. Lalitha1
and has concluded that the alienation by defendants No.4 to
6 in favour of the plaintiffs is in accordance with law. In the
aforementioned judgment, the Co-ordinate Bench of this
Court has referred to the several judgments of the Apex
Court to conclude that such alienation of undivided share of
minors by the Guardian does not require the Court's
permission and accordingly, the Trial Court has decreed the
suit.
12. As far as the contention that undivided share of
defendants No.4 to 6 could not have been sold before
effecting partition is concerned, it is again well settled
position of law that a Hindu is competent to alienate his
undivided share and in such an event purchaser's remedy is
to file a suit for partition and separate possession of the
property which he has purchased from the person having
undivided share. This being the position, the plaintiffs
2006(2) K.L.J. 67
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having purchased the undivided share have filed the suit for
partition and the same has been rightly decreed.
13. As far as the third contention that the defendants
No.1 to 3 have a preferential right to purchase the property
is concerned, this Court is of the view that, as rightly
contended by Mr. Teli, such a claim can be made only by
the Class-I heirs, who inherit the properties along with
other Class-I heirs. In the instant case, defendants No.1 to
3 are Class-II heirs, whereas defendants No.4 to 6 are
Class-I heirs of late Pandurang Pattar.
14. It is further relevant to note that though the
property is sold in the year 1993, the present appellants
have not chosen to file a suit seeking a preferential right to
purchase the property, and even the suit O.S. No.77/1999
seeking injunction is dismissed.
15. Under the circumstances, the points for
consideration framed above have to be answered in favour
of the respondents and against the appellants. This Court
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does not find any reason to interfere with the judgment and
decree passed by the Trial Court.
Accordingly, the appeal is dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
KMS
CT:ANB
