Karnataka High Court
G Hanumantharayappa Since Deceased By ... vs T Subramanya on 13 May, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2025:KHC:18236
RSA No. 2373 of 2010 R
C/W RSA No. 2374 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MAY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO. 2373 OF 2010 (DEC)
C/W
REGULAR SECOND APPEAL NO. 2374 OF 2010 (PAR)
IN RSA NO.2373/2010:
BETWEEN:
1 G. HANUMANTHARAYAPPA,
SINCE DECEASED BY LRs
AMENDED V/O DTD 06.08.2015
1(a) SMT. HANUMAKKA,
W/O LATE G. HANUMANTHARAYAPPA,
SINCE DEAD BY LRs
1 (b) SMT. JAYAMMA,
D/O LATE G. HANUMANTHARAYAPPA,
W/O R G GOWDA,
AGED ABOUT 65 YEARS,
Digitally signed 1(c) SMT. KAMALAMMA,
by
GEETHAKUMARI D/O LATE G. HANUMANTHARAYAPPA,
PARLATTAYA S
AGED ABOUT 49 YEARS,
Location: High
Court of
Karnataka 1(d) SMT. LAKSHMAMMA,
D/O LATE G. HANUMANTHARAYAPPA,
W/O PILLAPPA,
AGED ABOUT 44 YEARS,
ALL ARE R/O TALAGAWARA VILLAGE,
KASABA HOBLI, DODDABALLAPUR TALUK,
BANGALORE RURAL DISTRICT.
...APPELLANTS
[BY SRI VINOD KUMAR B.N., ADVOCATE (PH)]
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RSA No. 2373 of 2010
C/W RSA No. 2374 of 2010
AND:
1. SRI T.S. ANAND,
S/O SUBRAMANYA,
AGED ABOUT 39 YEARS,
2. T. SUBRAMANYA,
S/O LATE G THIMMAIH,
AGED ABOUT 60 YEARS,
3. T. RAJANNA, AMENDED V/O DTD 04.03.2024
S/O LATE G. THIMMAIH,
AGED ABOUT 52 YEARS,
DEAD BY HIS LRs
3(a) SMT. RAMAMANI,
W/O LATE T. RAJANNA,
AGED ABOUT 55 YEARS,
3(b) SRI T.R. SRINIVASA,
S/O LATE T. RAJANNA,
AGED ABOUT 31 YEARS,
3(c) SRI T.R.SANTHOSH,
S/O LATE T. RAJANNA,
AGED ABOUT 33 YEARS,
3(d) SRI DAYANANDA,
S/O LATE R. RAJANNA,
AGED ABOUT 33 YEARS,
ALL ARE R/A TALAGAWARA VILLAGE,
DODDABALLAPUR TALUK - 561 203,
BANGALORE RURAL DISTRICT.
4. SMT. SHARADAMMA,
W/O CHENNEGOWDA,
AGED ABOUT 62 YEARS,
R/O KOLURU VILLAGE, KASABA HOBLI,
DODDABALLAPUR TALUK.
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RSA No. 2373 of 2010
C/W RSA No. 2374 of 2010
4(a) K.R.CHANNEGOWDA, AMENDED V/O DTD 26.06.2024
H/O SHARADAMMA,
AGED ABOUT 91 YEARS,
4(b) SMT. SUJATHA K.C.,
D/O SHARADAMMA,
AGED ABOUT 60 YEARS,
4(c) SRI NARAYANAPPA K.C.,
S/O SHARADAMMA,
AGED ABOUT 45 YEARS,
4(d) SRI. K.C. CHANNAKESHAVAIAH,
S/O LATE SHARADAMMA,
SINCE DEAD BY HIS LRs
4(e)(i) SMT. KANTHAMMA,
W/O LATE MRUTHANJAYA,
AGED ABOUT 38 YEARS,
4(e)(ii) SRI CHANDANA,
D/O LATE MRUTHANJAYA,
AGED ABOUT 28 YEARS,
4(e)(iii) SRI CHARITH,
S/O LATE MRUTHANJAYA,
AGED ABOUT 24 YEARS,
ALL ARE R/A KOLUR VILLAGE,
KASABA HOBLI, DODDABALLAPURA TALUK.
...RESPONDENTS
[(BY SRI M.S.VARADARAJAN, ADV. FOR SRI K. RAGHUNATHA, ADV.
FOR R1 & R2 (PH)
R3(a - d) ARE SERVED & UNREPRESENTED;
V/O/DTD. 03.03.2023 APPEAL IS DISMISSED
AS AGAINST R3 & R4;
V/O/DTD 04.03.2024 NOTICE TO R4 (a - d) & R4(e)(i-iii) H/S;
V/O/DTD 24.04.2024 R1 IS TREATED AS LR OF DECEASED R2]
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RSA No. 2373 of 2010
C/W RSA No. 2374 of 2010
THIS RSA NO.2373/2010 IS FILED U/S. 100 OF CPC AGAINST
THE JUDGEMENT AND DECREE DT. 24.6.2010 PASSED IN
R.A.NO.55/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-III, BANGALORE RURAL DISTRICT, BANGALORE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DT.20.3.2007 PASSED IN O.S.NO. 163/2003 ON THE FILE
OF THE CIVIL JUDGE (SR.DN), DODDABALLAPUR.
IN RSA No.2374/2010:
BETWEEN:
1 G. HANUMANTHARAYAPPA,
SINCE DECEASED BY LRs
AMENDED V/O DTD 06.08.2015
1(a) SMT. HANUMAKKA,
W/O LATE G. HANUMANTHARAYAPPA,
SINCE DEAD BY LRs
1 (b) SMT. JAYAMMA,
D/O LATE G. HANUMANTHARAYAPPA,
W/O R G GOWDA,
AGED ABOUT 65 YEARS,
1(c) SMT. KAMALAMMA,
D/O LATE G. HANUMANTHARAYAPPA,
AGED ABOUT 49 YEARS,
1(d) SMT. LAKSHMAMMA,
D/O LATE G. HANUMANTHARAYAPPA,
W/O PILLAPPA,
AGED ABOUT 44 YEARS,
ALL ARE R/O TALAGAWARA VILLAGE,
KASABA HOBLI,
DODDABALLAPUR TALUK,
BANGALORE RURAL DISTRICT.
..... APPELLANTS
(BY SRI VINOD KUMAR B.N., ADVOCATE (PH))
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RSA No. 2373 of 2010
C/W RSA No. 2374 of 2010
AND:
1 . T SUBRAMANYA
S/O LATE G THIMMAIH,
AGED ABOUT 60 YEARS,
R/O TALAGAWARA VILLAGE,
DODDABALLAPUR TALUK.
2 . T RAJANNA,
S/O LATE G THIMMAIH,
AGED ABOUT 45 YEARS,
R/O TALAGAWARA VILLAGE,
DODDABALLAPUR TALUK - 561 203.
3 . SMT. SHARADAMMA
W/O CHENNEGOWDA,
AGED ABOUT 62 YEARS,
R/O TALAGAWARA VILLAGE,
DODDABALLAPUR TALUK - 561 203.
.... RESPONDENTS
[BY SRI M.S. VARADARAJAN, ADVOCATE FOR
SRI K. RAGHUNATHA, ADVOCATE FOR R1 (PH);
R2 - SERVED & UNREPRESENTED;
V/O DTD 08.01.2019 NOTICE TO R3 IS H/S]
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.24.6.2010 PASSED IN R.A.NO. 27/2003 ON THE
FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III,
BANGALORE RURAL DISTRICT, BANGALORE, PARTLY ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
7.10.2003 PASSED IN O.S.NO. 212/94 ON THE FILE OF THE CIVIL
JUDGE (JR.DN) AND JMFC, DODDABALLAPUR.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.12.2024, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
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RSA No. 2373 of 2010
C/W RSA No. 2374 of 2010
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
CAV JUDGMENT
Challenging judgment and decree dated 24.06.2010
passed by Presiding Officer, Fast Track Court-III, Bengaluru
Rural District, Bengaluru, in R.A.no.55/2003 and judgment and
decree dated 20.03.2007 passed by Civil Judge (Jr.Dn) & JMFC,
Doddaballapura, in O.S.no.163/2003, RSA no.2373/2010 is
filed. While RSA no.2374/2010 is filed challenging judgment
and decree dated 24.06.2010 passed by Presiding Officer, Fast
Track Court-III, Bengaluru Rural District, Bengaluru, in RA
no.27/2003.
2. Brief facts as stated are that appellants in RSA
no.2374/2010 were legal representatives ('LRs') of original
plaintiff in OS no.212/1994 filed for partition, separate
possession and mesne profits insofar as their ½ share in items
no.1 to 14 ('suit properties' for short) etc. In plaint, it was
stated plaintiff and defendants were members of Hindu
Undivided Family ('HUF'), wherein propositus was 'Giriyappa'.
He had two sons namely Hanumantharayappa - plaintiff and
Thimmayya, who was dead and succeeded by defendants no.1
and 2. It was stated, after death of propositus, plaintiff
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managed joint family. It was stated, plaintiff had three
daughters, who were married and happily residing with their
families. As he had no son, he lived with defendants. In year
1980, when plaintiff was hopelessly sick, he requested
Thimmayya to manage joint family and suit properties, which
were ancestral joint family properties, except item no.6, which
was purchased by plaintiff as manager of HUF, in name of
Smt.Gowramma w/o Thimmayya, as he was advised ceiling on
holding of properties would apply if purchased in his name or
his brother. It was stated, Thimmayya managed properties till
his death, 4 years prior to suit.
3. Since, plaintiff was old, left management of entire
properties to defendants no.1 and 2, he could not seek
partition. It was stated, even Smt.Gowramma was suffering
from throat cancer due to which her mental/physical faculties
were diminishing. Taking advantage of same, defendants no.1
and 2 got executed Will in their favour from Smt.Gowramma in
respect of item no.11 property, by undue influence and fraud.
Therefore, same was void/vitiated. Only when defendants
began negotiating for sale of item no.11 and under Will plaintiff
resisted defendants' title over said property. Though on
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07.08.1994 plaintiff demanded partition, defendants refused his
share. Hence, suit was filed.
4. On appearance, defendants filed written statement
denying plaint averments and alleging prior partition in year
1990. It was stated, defendant no.3 and LRs of plaintiff had
filed OS no.189/1991 for same relief. Said suit was between
same parties in respective of same properties and dismissed on
16.06.1998 on ground of non-joinder and mis-joinder of
parties. Admitting relationship with plaintiff but denying claim,
suppression of fact was alleged. It was stated on death of
propositus, plaintiff had taken share from his father and
separated from HUF.
5. It was stated, boundaries and description of suit
properties were incorrect and non-inclusion of all properties
was contended to be fatal to suit. It was stated, description of
item no.6 of suit properties was not proper. It was asserted,
Smt.Gowramma purchased item no.11 of suit properties in her
individual capacity from own her funds and money received
from her parents. Therefore, she was its absolute owner and as
such justified in bequeathing it under Will dated 09.05.1990 to
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TS Ananda son of defendant no.1 ('legatee', for short). Thus,
plaintiff had no right over said property and despite being
aware of Will, plaintiff had failed to seek for its cancellation,
which was fatal. It was stated, averments in plaint paras no.6
to 8 were denied by contending that suit was filed without
cause of action and Court fee paid was improper. Hence,
sought dismissal of suit.
6. Based on pleadings, trial Court framed following
issues in OS no.212/1994:
1. Whether the plaintiff proves that they and the
defendants constitute joint family?
2. Whether the plaintiff proves that suit schedule
properties are their ancestral and joint family
properties?
3. Whether the plaintiff proves that item no.6 of the
suit property was purchased on behalf of the joint
family in the name of Gowramma W/o Thimmaiah
the younger brother of deceased plaintiff?
4. Whether the plaintiff proves that, defendants no.1
and 2 have obtained Will in respect of item no.11
of the suit property by exercising undue influence
and fraud over Gowramma?
5. Whether the plaintiff proves that, the will
executed by Gowramma is null and void?
6. Whether the plaintiff is entitled for 1/2 share in
the suit schedule property?
7. Whether the suit is bad for non-joinder of
necessary parties?
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8. Whether the suit relief is barred by principles of
res-judicata?
9. Whether the suit is not maintainable?
10. Whether the plaintiff is entitled for the suit relief?
11. What order or decree?
7. In trial, plaintiff examined himself and another as
PWs 1 and 2 and got marked Exhibits P1 to 19. In rebuttal,
defendants no.1, 2 and another were examined DWs 1 to 3 and
got marked Exhibits D1 to 29.
8. On consideration, trial Court answered issues no.1,
2, 6, 9 and 10 in affirmative; issues no.3, 7 and 8 in negative;
issue no.4 and 5 as not arising for consideration and issue
no.11 by decreeing suit, holding plaintiff entitled for half share
in partition suit properties.
9. Aggrieved, defendant no.1 filed RA no.27/2003. It
was connected with RA no.55/2007 filed against judgment and
decree dated 23.07.2007 in OS no.163/2003.
10. Brief facts insofar as OS no.163/2003 was that it was
filed by legatee for declaration that he was absolute owner in
possession of property bearing Sy.no.12 and 20, totally
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measuring 10 Acres 14 guntas and 10 Acres 38 guntas with
common boundaries including kharab, situated at Maralenahalli
village, Kasaba Hobli, Doddaballapur Taluk, ('Will property' for
short) in pursuance of registered Will dated 09.05.1990 and
also to declare judgment and decree dated 07.10.2003 passed
by Civil Judge (Jr.Dn.) & JMFC., Doddaballapur, in OS
no.212/1994 as not binding on plaintiff insofar as above
property etc.
11. In plaint, it was stated legatee was son of T
Subramanya ('defendant no.1' in OS no.212/1994) and
grandson of Late Thimmayya and Smt.Gowramma. It was
stated, defendants no.1 to 4 were wife and children of Late
Hanumantharayappa ('LRs of plaintiff' in OS no.212/1994),
while legatee's father - defendant no.5, defendants no.6 and 7
were other children of Late Thimmayya. It was stated joint
family properties of Late Giriyappa were divided between
children of Hanumantharayappa and G Thimmayya in year
1975. Since then they were living separately enjoying
respective shares. Such being case, Smt.Gowramma - plaintiff's
grandmother purchased property from Nanjundaiah, with
consideration money of Rs.6,000/- given by her father, in year
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1976 [said property is included in OS no.212/1994 and
hereinafter referred to as 'item no.11 property'). Since then,
she enjoyed said property as self-acquired property. It was
stated on 07.01.1977, Smt.Gowramma had purchased item
no.11 property. It was further stated Smt.Gowramma died on
06.07.1990 at Talagawara village and last rites were performed
by plaintiff. Thereafter he came to know about bequeathal and
claimed in view of death of testator, legatee became absolute
owner of item no.11 property.
12. It was stated, OS no.212/1994 was filed for partition
of properties including item no.11 property, without arraying
legatee though he was 'necessary party'. In view of same,
decree passed in said suit was null and void and not binding on
legatee. It was also stated, OS 189/1991 was filed earlier by
Sharadamma d/o Thimmayya, was dismissed after contest.
But, said suit was decreed and RA no.27/2003 was pending.
13. It was stated, there was attempt to fraudulently
deprive legatee's right under Will and there was no basis for
claiming item no.11 property as joint family property. It was
stated, on death of testator, his name was mutated and
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thereafter he had also filed application for hadbast. Thereafter,
survey report was prepared by Surveyor, describing legatee as
'hiduvalidar'. Legatee also claimed to have borrowed loan of
Rs.25,000/- on 06.02.1999, Rs.30,000/- on 14.07.2000 and
Rs.30,000/- on 06.08.2001 from Corporation Bank,
Doddaballapura, which were not yet discharged. Therefore,
inclusion of item no.11 property in OS 212/1994 was not
justified, and decree passed therein was nullity and not binding
on legatee. Hence, suit was filed.
14. On appearance, Jayamma d/o Hanumantharayappa
filed written statement denying plaint averments and
specifically contending, propositus - Giriyappa owned ancestral
and joint family properties. Division of same between his
children - Hanumantharayappa and Thimmayya was denied.
Even claim about Smt.Gowramma having self-acquired
property was denied. It was alleged Will was concocted.
Contention about non-arraying was denied by stating that
legatee's father - Subramanya was defendant no.1 in OS
no.212/1994 and as such represented entire branch of family.
Therefore, decree was binding. Claim of loan taken from
Corporation Bank, Doddaballapur, execution of sale deed and
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Will were denied/disputed. Said contentions were taken and
decided in OS no.212/1994 and cannot be re-agitated again in
view of bar of res-judicata. On said ground sought dismissal of
suit.
15. Based on pleadings, trial Court framed following
issues in OS no.163/2003:
1. Whether plaintiff proves his ownership with
possession of suit schedule property under a
Regd. Will dated 19.05.1990 executed by his
grandmother Smt.Gowramma?
2. Whether plaintiff further proves that decree in OS
no.212/94 was fraudulently obtained by the
defendant no.1 to 4 behind his back?
3. Whether 3rd defendant proves that plaintiff's suit
is barred by the principles of res-judicata?
4. Whether plaintiff's suit valuation and court fee
paid is not correct?
5. For what order or decree?
16. In trial, legatee examined himself and three others
as PWs.1 to 4 and got marked Exs.P1 to P.38. In rebuttal,
Jayamma examined herself as DW.1 and got marked Exs.D1 to
D23.
17. On consideration, trial Court answered issues no.1
and 2 in affirmative, issues no.3 and 4 in negative; issue no.5
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by decreeing plaintiff's claim and also declaring that judgment
and decree dated 07.10.2003 passed in OS no.212/1994 as null
and void.
18. Aggrieved thereby RA no.55/2007 was filed. It was
connected with RA no.27/2003. Based on contentions urged in
said appeals, first appellate Court framed following points:
1. Whether the appellants in R.A.27/03 have made
out ground to permit additional evidence?
2. Whether the trial Court is justified in decreeing
O.S.no.212/94?
3. Whether the trial Court is justified in decreeing
O.S.no.163/03?
4. Whether the judgment and decree of the trial
Court in O.S.no.212/94 is required to be
interfered with in R.A.no.27/03?
5. Whether the judgment and decree of the trial
Court in O.S.no.163/03 is required to be
interfered with in R.A.55/07?
19. On consideration, first appellate Court answered
point no.1 in negative, points no.2 and 4 partly in affirmative,
point no.3 in affirmative and point no.5 partly in negative by
allowing RA no.27/2003 insofar as item no.11 property was
concerned and confirming trial Court judgment and decree of
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partition of half share in respect of items no.1 to 10 and 12 to
14 of suit properties and dismissing RA no.55/2007.
20. Sri Vinod Kumar BN, learned counsel for LRs of
plaintiff submitted aggrieved by divergent finding and allowing
RA no.27/2003 in part, RSA no.2374/2010 was filed. While RSA
no.2373/2010 was filed against concurrent findings and
dismissal of RA no.55/2007.
21. It was submitted, propositus Giriyappa owned suit
properties as ancestral properties. And after his death, they
were inherited by his sons - Hanumantharayappa and G
Thimmayya. Since Hanumantharayappa had no male issues,
after marriage of his three daughters, he was residing with
Thimmayya. And though there was no partition between them
and when he demanded but denied share, suit was filed. It was
submitted, suit was contested. On detailed consideration, suit
was decreed holding plaintiff entitled for ½ share in suit
properties.
22. While passing judgment and decree, trial Court took
note of contention of defendants that item no.11 property was
purchased by Smt.Gowramma and who had later bequeathed it
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to legatee under Will. It turned down contention of defendants
about item no.11 property being self-acquired property on
ground that, once status of HUF was accepted, property
purchased in name of one member would be presumed HUF
property and burden would be on party propounding it to be
self-acquired to establish same. It held as on date of acquisition
of item no.11 property, HUF had sufficient nucleus for acquiring
it and defendants failed to establish that it as self-acquired.
But, said findings were overturned in appeal solely on recitals in
sale deed and erroneously placing burden on plaintiff to
establish item no.11 property was joint family property. Since
existence of joint family nucleus was admitted, burden would
be on defendants - who were asserting it to be self-acquired
property to establish same.
23. In view of fact finding about nature of item no.11
property recorded in OS no.212/1994, re-agitation of same in
OS no.163/2003 would be hit by principles of res-judicata. As
father of legatee was party to OS no.212/1994 as defendant
no.1, finding in said suit would be binding on legatee even on
ground of acquiescence. Learned counsel sought to draw
attention of this Court on conduct of legatee in sitting on fence
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awaiting finding in OS no.212/1994 and filing suit staking his
claim as legatee only after its disposal.
24. It was submitted, insofar as item no.11 property,
claim of defendants and legatee was based on recital in sale
deed about purchase from funds received from her father. It
was submitted, bare recital in sale deed would not constitute
proof and during cross-examination, legatee admitted that he
was not aware, when amount was given to Smt.Gowramma. In
fact, he contradicted himself stating it to be given at time of
marriage and later stating it to be at time of purchase and
thereafter admitting that he was minor and had no knowledge.
On other hand, there was admission about sufficient income
from HUF properties of Giriyappa, which would corroborate
plaintiff's claim that it was purchased with joint family corpus.
Thus, item no.11 property was HUF property and liable for
partition.
25. It was further submitted, defence of prior partition
between Hanumantharayappa and Thimmayya with no share
being allotted to plaintiff would be contrary to reason.
Therefore, finding to contrary in RA no.27/2003 and RA
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no.55/2007 was liable to be set aside by allowing appeals and
holding plaintiff entitled for ½ share in item no.11 property
also. On above grounds sought for answering substantial
question of law in favour of appellant.
26. On other hand, Sri MS Varadarajan, learned counsel
for legatee opposed appeal. It was submitted, in written
statement filed by LRs of plaintiff in OS no.163/2003, there was
no specific pleading about purchase of item no.11 property with
joint family funds. It was submitted, there was no dispute
about relationship of parties and about existence of HUF. Item
no.11 property was self-acquired, purchased by
Smt.Gowramma on 07.01.1977 from N Nanjundaiah. After
purchase, entries in revenue records were mutated in her
name. Till her death, there was no dispute that it was her self-
acquired property. There is also no explanation why no
objections were raised during her lifetime.
27. Further, when plaintiff claimed item no.11 property
was HUF property, initial burden would be on him to establish
same. To substantiate same, plaintiffs relied on Ex.P1 -
registered sale deed (in OS no.212/1994) executed in favour of
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Smt.Gowramma. Recital in said deed itself was that it was
purchased from funds given by her father. To corroborate
same, Ex.P9 - letter dated 20.8.1976 (in OS no.163/2003)
stating that sum of Rs.6,000/- was given to Smt.Gowramma
was produced. Same would establish item no.11 was her self-
acquired property and same her Stridhana property. Therefore,
she would be absolute owner under Section 14 of Hindu
Succession Act, 1956 ('HSA' for short). Consequently,
execution of registered Will dated 09.05.1990 at Ex.P37
bequeathing item no.11 property to legatee would be lawful.
28. It was submitted, Ex.P.9 could not be invalidated
merely on ground that stamp paper was purchased more than a
year earlier, except where it was pleaded to be concocted and
evidence led to substantiate such contention.
29. It was further submitted, legatee had complied with
provisions under Section 63 of Evidence Act and 68 of Indian
Succession Act, examined attesting witness and scribe as
PWs.2 and 3 and established Will was duly executed, without
any suspicious circumstances. On appreciation, trial Court
rightly decreed legatee's claim holding item no.11 property was
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self-acquired property of Smt.Gowramma and decree in OS
no.212/1994 was not binding on legatee. Same was confirmed
by first appellate Court.
30. It was submitted, though contention is urged that
OS no.163/2003 was barred by res-judicata, trial Court framed
specific issue and answered it in negative on ground that
legatee was not party in OS no.212/1994. And first appellate
Court concurred. It was submitted, both Courts had
concurrently arrived at finding of fact that item no.11 property
was self-acquired property of testator and same could not be
interfered in second appeal under Section 100 of CPC. It was
submitted, they had concurrently held, Will dated 09.05.1990
was proved. Thus entire contentions in appeals were without
merit and sought dismissal of appeal.
31. In reply, learned counsel for LRs of plaintiffs
submitted, when Ex.P.9 was not signed by Smt.Gowramma,
mandatory requirements of Section 122 of Transfer of Property
Act, 1882, would not be complied rendering it void. However,
first appellate Court erred in ignoring said aspect and passing
impugned judgment and decree relying on Ex.P.9. It was
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submitted, stamp paper on which Ex.P.9 was issued by
Treasury Office on 29.04.1975 and sold to Hanumaiah on same
day, but used more than one year and four months later i.e. on
29.08.1976, without explanation. Therefore it was spurious and
as such unacceptable. Without appreciation of said
circumstances, impugned judgment and decree is passed.
32. Heard learned counsel, perused judgment and
decree and records.
33. These appeals are by plaintiff/his LRs challenging
finding about item no.11 property being self-acquired property
of testator, excluding it from claim for partition and upholding
claim of legatee under Will as well as holding that legatee was
not bound by judgment and decree in OS no.212/1994.
34. It is seen earlier suit i.e. OS no.212/1994 was filed
by plaintiff for partition, separate possession, mesne profits
etc., in respect of items no.1 to 14 of suit properties including
item no.11 property which was subject matter of bequeathal in
favour of legatee. Though legatee was not party to said suit, his
father was defendant no.1. After contest, suit was decreed in
respect of all suit properties. While, RA no.27/2003 was filed by
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defendant no.1 against said decree, legatee filed OS
no.163/2003 against LRs of plaintiff claiming title over item
no.11 property as legatee under Will dated 09.05.1990 and for
declaring that judgment and decree in OS no.212/1994 as null
and void and not binding on legatee. Said suit was decreed and
assailed by LRs of plaintiff in RA no.55/2007. After clubbing
both appeals, first appellate Court allowed defendant's appeal
allowed in part excluding item no.11 property from decree of
partition and dismissing appeal by LRs. of plaintiff. There is no
further appeal by defendants. Thus, decree for partition in
respect of all other suit properties except item no.11 property
has attained finality. Thus common challenge in both appeals is
about nature of item no.11 property, whether as HUF property
and therefore amenable for partition or self-acquired property
of Smt.Gowramma - testator and therefore impartible.
35. Appeals were admitted on 05.01.2021 to consider
following common substantial questions of law:
1. Whether first Appellate Court was justified in
setting aside the judgment and decree passed by
the trial Court in respect of item no.11 property
and holding that it belonged to Smt.Gowramma
exclusively?
2. Whether first Appellate Court erred in not holding
that the deed dated 29.08.1976 was a void
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document because it was hit by Section 122 of
the Transfer of Property Act?
36. In OS no.212/1994, claim of plaintiff for partition of
his half share was on assertion that all suit properties were HUF
properties except item no.6 purchased in name of
Smt.Gowramma while he was manager of HUF with its funds.
Explanation offered that same was to avoid purchase falling
foul of ceiling on holding of property. Existence of HUF between
plaintiff and defendant is not disputed. Even nature of
properties as HUF properties was not contested except insofar
as item no.11 property. Insofar as item no.11 property, it was
stated to be purchased by Smt.Gowramma with money given
by her father as Stridhana.
37. While passing judgment and decree, trial Court took
note of rival pleadings and evidence, to conclude that there was
no dispute about existence of HUF. In view of above admission,
it observed, burden to establish item no.11 property being self-
acquired property of Smt.Gowramma would lie on person
asserting it to be so i.e. defendant no.1 and father of legatee.
Noting that no material was placed, it held in favour of plaintiff.
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38. While passing judgment and decree in OS
no.163/2003, it was observed revenue records produced by
legatee would show mutation of his name and PW.1 deposed as
absolute owner of item no.11 property, testator executed Will
in his favour and sustaining cross-examination. It relied on
conduct of LRs of plaintiff not objecting plaintiff borrowing loan
from Corporation Bank and their failure to substantiate
contribution of HUF funds for purchase of item no.11 property.
It noted though Ex.P9 was marked subject to objection,
payment could be established without receipt. It also rejected
challenge of Ex.P9 on ground that Gowramma was resident of
Talagavara village of Doddaballapura and her father was
resident of Hanumanthpura village of Gowribidanur Taluk, there
was no explanation for purchase of stamp paper at Bagalur of
Devanahalli Taluk. It also noted failure to examine either of
witnesses named in Ex.P9, but on ground that there was
nothing unusual for a father to give money to his daughter by
executing document. It observes Ex.P9 was more than 30 years
old and attracted benefit under Section 90 of Evidence Act.
Thereafter, referring to recital in Ex.P9, it held purchase of
property was exclusively by Gowramma.
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39. Thereafter, it examined evidence regarding Will and
holding same as proved. It observed recital in sale deed and
Ex.P9 would be sufficient to establish item no.11 property was
self acquired property of Gowramma and she would become its
absolute owner under Section 14 (1) HSA. It observed,
deposition of DW.1 that suit property being ancestral was
without supporting material and concluded that there was no
reason for ignoring deposition of PW.1 and decreed suit.
40. In Appeal, first appellate Court observes there was
no dispute about relationship. It noted plaintiffs' claim that
items no.6 and 11 were purchased in name of Gowramma and
therefore burden would be on him to establish it. Likewise,
taking note of defendants about prior partition, it holds burden
would be on them to establish same. Thereafter, it refers to
deposition of PW.1 that suit property was HUF property and
also not aware of prior partition and admission in cross-
examination that she was unaware when item no.6 was
purchased. It noted though PW.2 deposed suit properties were
HUF properties and there was no partition, he pleaded
ignorance to suggestion made about prior partition and also
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stated that he does not know nature of item no.11 property. It
refers to deposition of DW.1 (legatee's father) who asserted
prior partition between Thimmayya and plaintiff, but admitted,
after death of propositus, they were jointly cultivating suit
properties and despite stating partition was by signing of
panchayat palupatti, failed to produced same to conclude that
there was no prior partition.
41. It observed, while PW.1 admitted ignorance,
deposition of DW.1 that item no.11 property was purchased by
Gowramma with money given by her father was supported by
Ex.P9 in OS.no.163/2003 and deposition of legatee. Thereafter,
it held ratio laid down in case of Santanu Kumar
Das v. Bairagi Charan Das reported in AIR 1995 Ori. 300
that presumption about purchase of property in name of joint
family member would be joint family property, would not apply,
if property was purchased in name of female member would be
attracted, to conclude that item no.11 property was not HUF
property. Consequently, it held testator had right to bequeath it
and there were no suspicious circumstances as alleged.
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42. It observed legatee was not party to earlier suit and
relief sought in was for partition, whereas later suit was for
declaration negatived contention about res-judicata. Insofar as
contention about legatee being necessary party in OS
no.212/1994, it observed prayer in said suit was only about
suit properties being liable for partition and not about proof of
Will, which was exclusive subject matter in OS no.163/2003, to
conclude that suit was not hit by non-joinder. On said findings,
it passed impugned judgment and decree.
43. As noted above, main grounds urged are about
invalidity of Ex.P9 and about perversity of findings of first
appellate Court. It is seen, conclusions of first appellate Court
pivot on recital in sale deed about purchase of property with
money given by her father. Defendants/legatee rely on Ex.P9 to
establish same. Contentions about Ex.P9 being invalid as gift
and it being spurious were urged, but not directly addressed by
first appellate Court. It overruled same by taking judicial notice
of fact that it was not unusual for a father to execute deed for
giving money to his daughter.
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44. It is seen Ex.P9 was marked noting objections. In
cross-examination, legatee examined as PW.1 admitted he
does not know about execution of Ex.P9, but stated that it was
written by Tindlu Nagaraja and attested by Putta Mallappa and
Muniyappa. Insofar as item no.11 property he initially stated
that it was given by Smt.Gowramma's father at time of her
marriage, but later stated it was at time of purchase. Though
PWs.2 and 3 (in OS no.163/2003) deposed about payment of
money by Smt.Gowramma's father for purchase of item no.11
property, they deny it in cross-examination. This would show
that there is contradiction about contribution and nature of item
no.11 property. However apart from Ex.P9, there is specific
recital in sale deed is about contribution of purchase money by
Smt.Gowramma's father. Normally, recital in registered deed is
binding on parties to deed and on persons claiming under
them. When, item no.11 property is claimed to be HUF property
due to its purchase by Smt.Gowramma, recital in purchase
deed would attract presumption. Though, it was open for
plaintiff to rebut presumption. It is seen, unlike pleaded insofar
as item no.6, there is neither pleading nor any evidence insofar
as item no.11 property. On other hand, plaintiffs claim is by
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invoking general presumption about purchase of property in
name of any member of HUF as being HUF property. Same
would be supported by ratio laid down by Hon'ble Supreme
Court in case of D.S. Lakshmaiah v. L. Balasubramanyam,
reported in (2003) 10 SCC 310:
"18. The legal principle, therefore, is that there is no
presumption of a property being joint family property
only on account of existence of a joint Hindu family.
The one who asserts has to prove that the property
is a joint family property. If, however, the person
so asserting proves that there was nucleus with
which the joint family property could be
acquired, there would be presumption of the
property being joint and the onus would shift
on the person who claims it to be self-acquired
property to prove that he purchased the
property with his own funds and not out of joint
family nucleus that was available."
45. But, it is to be noted that item no.11 property, in
instant case, if purchased in name of Smt.Gowramma. It is held
by High Court of Orissa in Santanu Kumar Das's case
(supra) that general presumption would not apply in case of
purchase in name of female member of family. Said view is
reiterated with emphasis by High Court of Delhi in Nikhil Batra
v. Diwakar Batra, reported in 2019 SCC OnLine Del 8253,
wherein it is held:
"17. Mention may also be made of a judgment of a
learned Single Judge of the High Court of Orissa
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in Santanu Kumar Das v. Bairagi Charan Das AIR
1995 Ori. 300 and with which I respectfully agree.
In that case, the property was purchased in the
name of a female, when the family members were
living jointly and the husband of the said female
was the manager and karta of the family. It was
the case of the son of the said female that the
property was purchased from joint family fund
and it was so purchased in the name of the
female to maintain goodwill with her. It was held
that the Courts below were under a misconception
of law that when a property is purchased in the
name of a female member of the joint family and
there is sufficient nucleus, the said property
should be presumed to be joint family property.
Such a presumption was held to be available only
in the case of a male member of the family, but
not a female member. It was held that a female
may continue to be a member of the joint family,
but property purchased in her name is not joint
family property. Reliance was placed on earlier
judgment of the Division Bench of the same High
Court in Manahari Devi v. Choudhury Sibanava
Das AIR 1983 Ori 135 and which in turn relied on
yet another judgment of the High Court of Madras
in Nagayasami Naidu v. Kochadai Naidu AIR 1969
Mad 329.
18. However, the aforesaid judgments are also of an
era when benami as a plea was permitted in the
Indian Courts. The Benami Transactions
(Prohibition) Act which came into force on
5th September, 1988 changed the said position.
Section 4 thereof bars a suit claim or action to
enforce any right in respect of any property held
benami against the person in whose name the
property is held or against any other person, on
behalf of a person claiming to be the real owner
thereof. However the said bar, per Section 4(3)
does not apply to the person in whose name the
property held is a coparcener in a HUF and the
property is held for the benefit of coparceners in
the family or where the person in whose name
the property is held is a trustee or otherwise
standing in a fiduciary capacity and who holds the
property for the benefit of any other person for
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whom he is a trustee or for whom he stand in
such capacity. However, the said exceptions
would not be attracted inasmuch as neither can a
Hindu female be a coparcener nor is Kanta Batra
said to be standing or stood in law in a fiduciary
capacity qua her husband or qua the alleged HUF.
19. The aforesaid Act has been amended with effect
from 10th August, 2016 and is now known
as Prohibition of Benami Property Transactions
Act, 1988. Section 4 of the Amended Act also bars
a suit to enforce any right in respect of a property
held benami.
20. The plea of the plaintiff in this suit, of Kanta Batra
being the benami owner of the property and HUF
of K.N. Batra being the real owner of the
property, is in the teeth of the said law.
21. As far as the judgments cited by the counsel for
the defendant no. 1 are concerned, (i) Ashok
Sardana and Marabasappa supra concerned with
claims, of the property in the name of a female
being the property of the HUF, referred to
Section 14 of the Hindu Succession Act,
1956 mandating that any property of a female
Hindu is her absolute property and she has full
ownership thereof; (ii) Surender
Kumar and Satyawati supra explain what
constitutes a coparcenary/Hindu undivided family;
and, (iii) Saurabh Sharma supra was also a case
of a property of a female Hindu and also holds
that the same cannot constitute a property of the
HUF."
46. And by High Court of Andhra Pradesh in case of
Sharada Bai v. Jamuna Bai, reported in 2001 SCC OnLine
AP 473, holding:
"13. Now, let us examine the exhibits which were
exhibited during the trial to show that the
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property in fact was self acquired property
of Sharbathi Bai. The first and foremost are the
agreements of sale Exs. A2 and A3 and then the
sale deed by Sharbathi Bai in favour of the
plaintiff i.e., Ex. A4. Ex. A17 is application moved
by Sharbathi Bai under Section 27 of the Urban
Land Ceiling and Regulation Act for transfer of the
property. These documents and the evidence of
the plaintiff's witnesses and defendants witnesses
show conclusively that the property was self
acquired property of the Sharbathi Bai. It is also
stated by defendant No. 2 that Sharbati Bai had
landed properties in some village. There are other
documents showing that there was Rice Mill in the
name of Sharbathi Bai. Those documents are
contained in Ex. A29 and A30. Although they are
in the name of Saraswathi Bai w/o Ganesh Lal but
it has come in evidence that Sharbathi Bai was
known as Saraswathi Bai also. Therefore, there
are strong grounds to believe that the property in
question was self acquired property of Sharbathi
Bai. On the other hand the defendants case was
that it was a joint property but the evidence even
from defendants suggest that the joint family had
collapsed much earlier. The defendants have not
brought any documents on record but there is
statement of DW2 who is defendant and who is
wife of one of the sons of Ganesh Lal. She in her
statement accepted that certain properties were
given to other brothers. She also stated that she
along with another son of Ganesh Lal sold
properties which belonged to the joint family.
Therefore, one does not find that a nucleus of a
joint family continued till 1981 when the sale
deeds were executed. One could also not construe
that the house which was purchased by Sharbathi
Bai was purchased by her from the wife of her
brother was in fact a benami transaction. There
has been evidence that the original house
purchased by Sharbathi Bai was demolished and a
new house was constructed. It might be true that
the new house was constructed but there is no
evidence to suggest that the new house was
constructed from the funds of joint family. Even
if, for the sake of argument, it is accepted that
this house was constructed as the joint family
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property those were not the only properties
belonging to so called joint family. The father of
the parties had huge properties. He had land in
many areas to which a reference has been made.
He had also many houses. Those lands have been
sold by sons including the defendants and houses
are occupied by sons including the defendants. Is
the suit property only house which was the joint
property. No evidence had been led by the
defendants to show as to how they came into
possession of the properties which were sold by
them. Even the learned single Judge did not held
that the sale deed was sham. Therefore the
appeal has been filed by the defendants. The sale
deeds in respect of suit property could have not
been declared sham. This is also in evidence that
the execution of the sale deed was known to the
defendants, yet they chose not to challenge the
sale deed. Suit for partition was not even filed
although the father of the parties died in the year
1973. The only argument that was made on
behalf of the defendants was that a compromise
had been arrived at between the parties. This
compromise has rightly been rejected by the trial
Court as well as by the learned single Judge. This
compromise was arrived at during the
proceedings in a suit. The suit had been
dismissed. So, the compromise did not become a
decree and also this compromise was neither
registered nor stamp duty was paid. There was no
evidence led by the defendants to show that the
suit property was joint property. At best they
were able to show that at the time of purchase of
the house by Sharbathi Bai the family was joint.
That would not mean that property held
by Sharbathi Bai was a joint family property. The
onus was on the defendants to prove that the
property purchased in the name of Sharbathi
Bai was property of joint family. It was suggested
by the learned Counsel for the respondents that
basically it was a benami transaction and Ganesh
Lal had purchased the property in the name of his
wife. The Counsel for the plaintiff submits that
this argument was not accepted even by the
learned single Judge and the sale deeds were not
held to be sham. He relies on judgment of Orissa
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High Court in Santanu Kumar Das v. Bairagi
Charon Das, AIR 1995 Ori. 300. In this judgment
it was held that, in case of property purchased in
the name of female member of Hindu family there
is no presumption that it is a joint family
property. He submits that the burden of proving
that a particular sale was benami and that the
purchaser was not a real owner always rests on
the person asserting it to be so and there is no
evidence led by the defendants to show that the
consideration of sale deed executed in favour
of Sharbathi Bai had come from her husband. He
also relies on a judgment of Supreme Court
in Jayadayal Poddar v. Bibi Hazra, (1974) 1 SCC
3: AIR 1974 SC 171. In this judgment the
Supreme Court laid down the tests for examining
whether a particular transaction was benami, or
not as under:
"It is well settled that the burden of proving
that a particular sale is benami and the
apparent purchaser is not the real owner,
always rests on the person asserting it to be so.
This burden has to be strictly discharged by
adducing legal evidence of a definite character
which would either directly prove the fact of
benami or establish circumstances unerringly
and reasonably raising an inference of that fact.
The essence of a benami is the intention of the
party or parties concerned; and not unoften
such intention is shrouded in a thick veil which
cannot be easily pierced through. But such
difficulties do not relieve the person asserting
the transaction to be benami of any part of the
serious onus that rests on him; nor justify the
acceptance of mere conjectures or surmises, as
a substitute for proof. The reason is that a deed
is a solemn document prepared and executed
after considerable deliberation, and the person
expressly shown as the purchaser or transferee
in the deed, starts with the initial presumption
in his favour that the apparent state of affairs is
the real state of affairs. Though the question
whether a particular sale is benami or not, is
largely one of fact, and for determining this
question, no absolute formulae or acid test,
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uniformly applicable in all situations, can be laid
down; yet in weighing the probabilities and for
gathering the relevant indicia, the Courts are
usually guided by these circumstances: (1) the
source from which the purchase money came;
(2) the nature and possession of the property,
after the purchase; (3) motive, if any, for
giving the transaction a benami colour; (4) the
position of the parties and the relationship, if
any, between the claimant and the alleged
benamidar; (5) the custody of the title deeds
after the sale and (6) the conduct of the parties
concerned in dealing with the property after the
sale".
14. Although the Supreme Court laid down tests yet it
cautioned that examples given would not be
exhaustive and the question as to whether a
particular sale deed was benami or not would be
essentially a question of fact and would have to be
tested in each case.
15. In another judgment being Vidyadhar v. Usman
Gani, (1974) 2 SCC 338: AIR 1974 SC 658, the
Supreme Court held that, for arriving at a
conclusion that a transaction was benami or not the
real test would be as to what was the source from
which the consideration came but when it was not
possible to establish conclusively as to where from
the consideration came the case must be dealt with
on reasonable probabilities and legal inferences.
16. Applying the tests of weighing the probabilities and
for gathering the relevant indicia and seeing the
source from which the purchase money came and
also the nature and possession of the property after
the purchase, we believe that the purchase was not
benami. We have already indicated that Sharbathi
Bai had lands and even a Rice Mill was in her name.
Even the subsequent events show that the property
was not a benami transaction and Sharbathi Bai was
dealing with the property. Ex. A33 is the permission
granted to her by the Municipal Corporation of
Hyderabad for making additions and alterations and
the rent deeds Ex. A23 and A24 were also in her
name. Ex. A45 is the Tax receipt issued by
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Municipal Corporation in her favour. Ex. A46 is the
notice to Sharbathi Bai for payment of the tax."
47. In view of above, merely establishing sufficient
income from HUF properties, plaintiff cannot seek to lay claim
over item no.11 property on basis of general presumption
without specific evidence that if was purchased with HUF funds.
It is seen, while passing impugned judgment and decree, first
appellate Court has referred to recital in sale deed and Ex.P9 as
well as admission about joint family properties yielding income,
while weighing probabilities and arrived at conclusion by
assigning reasons. Same cannot held to be suffered from
perversity as would necessitate interference in second appeal.
Thus, substantial question of law no.1 is answered in
affirmative, substantial question of law no.2 is in negative.
48. Consequently, following:
ORDER
RSA.no.2373/2010 and RSA.no.2374/2010 are
dismissed. No order as to costs.
Sd/-
(RAVI V. HOSMANI)
JUDGE
