Karnataka High Court
Smt Bharati vs Sri. Gangappa Mailaragouda ... on 14 February, 2025
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RSA No. 100793 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100793 OF 2023 (PAR/POS-)
BETWEEN:
1. SMT BHARATI
W/O. PARUTAGOUDA PATIL,
AGE. 41 YEARS,
OCC. HOUSEHOLD,
R/O. MUMMIGATTI,
TQ: DIST:-DHARWAD - 580001.
2. SMT. SUMITRA
W/O. PARAMESHWAR LAGAMMANAVAR,
AGE. 39 YEARS,
OCC. HOUSEHOLD,
R/O. SHIRUR,
TQ. NAVALAGUNDA,
DIST-DHARWAD - 580008.
3. GEETA W/O. BASAVARAJ YADAL,
AGE: 37 YEARS, OCC: HOUSEHOLD,
Digitally R/O. AMBADAGATTI,
signed by V TQ: BAILAHONGALA, DIST: BELAGAVI - 590001.
N BADIGER ...APPELLANTS
Location: (BY SRI. SANTOSH B. MALLIGAWAD, ADVOCATE)
High Court
of
Karnataka, AND:
Dharwad
Bench
1. SRI. GANGAPPA MAILARAGOUDA DESAIGOUDRA
AGE. 66 YEARS, OCC. AGRICULTURE AND COOLIE,
R/O. MUMMIGATTI,
TQ AND DIST DHARWAD - 590001.
2. SMT. PARAVVA
W/O. GANGAPPA DESAIGOUDAR
AGE. 59 YEARS,
OCC. HOUSEHOLD,
R/O. MUMMIGATTI,
TQ. DIST. DHARWAD - 590001.
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RSA No. 100793 of 2023
3. SRI. BASAPPA MAILARAGOUDA DESAIGOUDRA
(DEAD).
3a. SMT. CHINNAVVA
W/O. BASAPPA DESAIGOUDRA,
AGE. 66 YEARS,
OCC. HOUSEHOLD,
R/O. KURAHATTI PETE,
BEHIND KONDAVADA
BETAGERI, TQ AND DIST GADAG.
4. SRI. MALLIKARJUNAPPA MAILARAGOUDA
DESAIGOUDRA,
AGE. 56 YEARS,
OCC. AGRICULTURE AND COOLIE,
R/O. KURUHATTI PETE,
BEHIND KONDAVADA BETAGERI,
TQ: DIST: GADAG - 582102.
5. SRI. VIRUPAKSHAPPA CHANNAPPA BALLOLLI
AGE. 68 YEARS,
OCC. AGRICULTURE AND COOLIE,
R/O. HOMBALA,
TQ: DIST: GADAG - 582102.
...RESPONDENTS
(R1 & R2 - DISMISSED; R3 - HELD SUFFICIENT;
R4 - SERVED UNREPRESENTD;
SRI. C.S. SHETTAR, ADVOCATE FOR R5)
----
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO,1. SET ASIDE THE JUDGMENT AND DECREE DATED 22.12.2021
PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, GADAG IN O.S.NO.293/2013 AND SET-
ASIDE THE JUDGMENT AND DECREE DATED 03.03.2023 PASSED BY
THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
MAGISTRATE GADAG IN R.A.NO.15/2022 AND DECREE THE SUIT OF
THE PLAINTIFF.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
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RSA No. 100793 of 2023
ORAL JUDGMENT
This Regular Second Appeal is preferred by the plaintiffs,
challenging the judgment and decree dated 03.03.2023 passed
in RA No.15/2022 on the file of Principal Senior Civil Judge and
JMFC, Gadag, (for short, hereinafter referred to as 'First
Appellate Court'), dismissing the appeal and confirming the
judgment and decree dated 22.12.2021 in OS No.293/2013 on
the file of Principal Civil Judge and JMFC, Gadag, (for short,
hereinafter referred to as 'Trial Court'), dismissing the suit.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. It is the case plaintiffs that, the plaintiffs are
children of Gangappa (defendant Nos.1 and 2). It is stated
that, the grandfather of the plaintiff - Mailaragouda had three
children namely Gangappa (defendant No.1), Basappa
(defendant No.3) and Mallikarjunappa (defendant No.4). It is
further stated that, the suit schedule property was belong to
the grandfather of the plaintiffs - Mailaragouda having
purchased the same as per registered sale deed dated
06.05.1959. The plaintiffs came to know that, the defendant
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Nos.1, 3 and 4 have colluded with each other and had sold the
suit schedule property in favour of defendant No.5 as per
registered sale deed dated 02.08.2010 and therefore, it is
contended by the plaintiffs that since, the suit schedule
property is the ancestor property of the plaintiffs and therefore,
the defendant Nos.1, 3 and 4 have no legal right to sell the suit
schedule property in favour of the defendant No.5 and the said
sale deed dated 02.08.2010 is not binding on the plaintiffs.
Hence, the plaintiffs filed OS No.293/2013.
4. Upon service of notice, the defendant Nos.1 and 2
unrepresented and remained absent. The defendant No.3 died.
Defendant No.4 was placed ex-parte. The only defendant who
contested the matter was defendant No.5 who had purchased
the suit schedule property as per registered sale deed dated
02.08.2010, has taken up a specific plea that, suit property is
neither ancestral nor joint family property and defendant Nos.1,
3 and 4 have sold the property for family legal necessities and
accordingly, sought for dismissal of the suit.
5. In order to establish their case the plaintiffs have
examined two witnesses as PW1 and PW2 and got marked 02
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documents as Ex.P1 and P2. The defendants have examined
two witnesses as DW1 and DW2 and produced 05 documents
and same were marked as Ex.D.1 to D5.
6. The Trial Court, after considering the material on
record, held that the plaintiffs have no right in respect of the
land bearing Sy.No.111/3 and further held that the plaintiffs
are entitled for share in the house property. Feeling aggrieved
by the same, the plaintiffs have preferred appeal in RA
No.15/2022 before the First Appellate Court and the said
appeal was contested by the defendant No.5. The First
Appellate Court after considering the material on record, by
judgment and decree dated 03.03.2023 dismissed the appeal,
consequently, confirmed the judgment and decree in OS
No.293/2013. Feeling aggrieved by the same, the plaintiffs
have preferred this appeal.
7. I have heard Sri. Santosh B. Malligawad, learned
counsel appearing for appellant and Sri. C. S. Shettar, learned
counsel appearing for respondent No.5.
8. Sri. Santosh B. Malligawad, learned counsel
appearing for appellant contended that the grandfather of the
plaintiffs has purchased the suit schedule property and on the
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demise of grandfather, the property devolved to his children
namely defendant Nos.1, 3 and 4 and therefore, as the suit
property is ancestral property of the plaintiffs, the defendant
Nos.1, 3 and 4 have no legal right to sell the property in favour
of defendant No.5 and therefore, the sale deed executed by
defendant Nos.1, 3 and 4, is not binding on the plaintiffs. In
this regard, he refers to the judgment of this Court in RFA
No.323/2009 disposed off on 04.12.2024 and argued that, the
finding recorded by both the Courts below requires to be
interfered with in this appeal.
9. Per contra, Sri. C. S. Shettar, learned counsel
appearing for respondent No.5 supported the impugned
judgment and decree passed by both the Courts below and
argued that, as the defendant Nos.1, 3 and 4 collectively sold
the property in favor of defendant No.5 for legal necessity and
therefore, the finding recorded by both the Courts below
requires to be confirmed.
10. In the light of the submissions made by the learned
counsel appearing for the parties, I have carefully examined
the finding recorded by both the Courts below and perused the
original papers. In order to understand the relationship
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between the parties, it is relevant to extract the genealogy of
the parties which reads as under;
Mailaragouda (Dead)
Gangappa Basappa Mallikarjunappa
Deft. No.1 Deft. No.3 Deft.No.4
Paravva- Deft. No.2
Bharati Suma Geeta
Pltf. No.1 Pltf. No.2 Pltf. No.3
11. It is not in dispute that, Mailaragouda - grandfather
of the plaintiffs had purchased the suit schedule land as per
registered sale deed dated 06.05.1959. The said Mailaragouda
died leaving behind three children namely defendant Nos.1, 3
and 4. It is not in dispute that the suit schedule property is the
ancestral property of children of Mailaragouda. However, all the
brothers including the father of the plaintiffs have sold the suit
schedule land in favour of defendant No.5 by registered sale
deed dated 02.08.2010 (Ex.D1). I have carefully examined the
recitals in the registered sale deed dated 02.08.2010 where the
vendors (defendant Nos.1, 3 and 4) have an unequivocally
words stated that, they are in need of money for the family
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necessity and therefore, intends to sell the suit schedule
property in favour of defendant No.5.
12. Taking into account the fact that, the defendant
Nos.1, 3 and 4 have collectively sold the property in favour of
defendant No.5, I do not accept the submission made by the
learned counsel appearing for the appellant that the sale deed
in favour of defendant No.5 is to be held invalid. Interestingly,
the suit filed by the plaintiffs is collusive suit as the defendant
Nos.1, 3 and 4 were placed ex-parte and they have not
contested the matter before the Trial Court and also before the
First Appellate Court. The father and uncle of the plaintiffs were
placed ex-parte as they remained absent.
13. In that view of the matter, taking into account the
declaration of law made by the Hon'ble Supreme Court in the
case of Smt. Rani and Another Vs. Smt. Santa Bala
Debnath and Others1, at paragraph Nos.10 to 13 has held as
under:
"10. Legal necessity to support the sale
must however be established by the alienees.
Sarala owned the land in dispute as a limited
AIR 1971 SC 1028
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owner. She was competent to dispose of the
whole estate in the property for legal necessity
or benefit to the estate. In adjudging whether
the sale conveys the whole estate, the actual
pressure on the estate, the danger to be averted,
and the benefit to be conferred upon the estate
in the particular insistance must be considered.
Legal necessity does not mean actual
compulsion:it means pressure upon the estate
which in law may be regarded as serious and
sufficient. The onus of providing legal necessity
may be discharged by the alienee by proof of
actual necessity or by proof that he made proper
and bona fide enquiries about the existence of
the necessity and that he did all that was
reasonable to satisfy himself as to the existence
of the necessity.
11. Recitals in a deed of legal necessity do
not by themselves prove legal necessity. The
recitals are, however, admissible in evidence,
their value varying according to the
circumstances in which the transaction was
entered into. The recitals may be used to
corroborate other evidence of the existence of
legal necessity. The weight to be attached to the
recitals varies according to the circumstances.
Where the evidence which could be brought
before the Court and is within the special
knowledge of the person who seeks to set aside
the sale is withheld, such evidence being
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normally not available to the alienee, the recitals
go to his aid with greater force, and the Court
may be justified in appropriate cases in raising
an inference against the party seeking to set
aside the sale on the ground of absence of legal
necessity wholly or partially, when he withholds
evidence in his possession.
12. Kunja Behari husband of Sarala had
died in 1937 after a protracted illness there is no
reliable evidence that he left any property except
the residential house, built on a part of the land
which Sarala had inherited from her father.
Sarala had two sons who were then minors and
two daughters who were yet to be married.
There were five members in the family to be fed
and clothed, and the marriage expenses of two
daughters had to be met. The case that Tulsi the
eldest son obtained gainful employment shortly
after his father's death and before the sale deed
was executed was rightly disbelieved by the Trial
Court. The story that Gobinda had taken to
hawking vegetables has also been rightly
disbelieved by the Trial Court. Sarala had to
meet several obligations : she had to pay the
annual rent accruing due in respect of the land in
dispute and also to pay municipal taxes: she had
to feed and clothe herself and her children and,
to perform the marriage of her daughter Radha.
She had no other property and she had no
income. The recitals in the deed about the
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existence of pressure upon the estate are,
therefore, amply corroborated by the
circumstances.
13. Mr. Purshottam Chatterjee appearing on
behalf of the plaintiffs contended that there was
evidence only of the debts amounting to Rupees
75/-, Rs. 25/- as rent for the land payable to the
head-lessor and Rs.50/- expenditure incurred for
the marriage of the daughter Mangala. Counsel
relied upon the recitals made in a plaint filed in a
suit for recovery of rent by the landlord against
Sarala after the sale deed in which the rent for
the years 1941, 1942 and 1943 was claimed.
Counsel also relied upon the evidence that in the
community to which Sarala belonged, the
marriage of a daughter only costs Rs.50/-. That
evidence, in our judgment, is wholly unreliable.
In any event apart from the obligation to pay
rent and to meet the expenses of marriage of her
daughter Mangala various other obligations had
to be met. The argument that Sarala belonged to
a community in which the male members used to
be employed as "household servants" and that
Tulsi and Gobinda were so employed is also not
supported by any reliable evidence. In our
judgment, the High Court ignored the strong
inference which arose out of these Circumstances
and especially out of the participation by Gobinda
in the execution of the agreement of sale and the
sale deed."
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14. As the land in question sold by the defendant
Nos.1, 3 and 4 for family necessity, the finding recorded by
both the Courts below requires to be confirmed and plaintiffs
have not approached the Court with clean hands and suit is
nothing but a collusive suit between the plaintiffs and
defendant Nos.1, 3 and 4 and father of the plaintiffs though
signatory to the deed is remained absent and therefore, no
interference is called for in this appeal.
15. Perusal of the finding recorded by both the Courts
below would indicate that, there is no perversity in the
judgment and decree passed by the Courts below. Accordingly,
appeal is dismissed at the stage of admission.
Sd/-
(E.S.INDIRESH)
JUDGE
SMM
CT:ANB
