[Cites 13, Cited by 0]
Karnataka High Court
Smt. Puttavva W/O. Sangappa Gaddi vs Smt. Reshma W/O. Ravi Vernekar on 30 January, 2026
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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RFA NO.100017 OF 2018
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 30TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR FIRST APPEAL NO.100017 OF 2018 (PAR/POS)
BETWEEN
1. SMT. PUTTAVVA
W/O. SANGAPPA GADDI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: ALLAPUR,
TQ: HANAGAL, DIST: HAVERI.
2. KUM. SAVITA
D/O. SANGAPPA GADDI,
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
R/O: ALLAPUR,
TQ: HANAGAL, DIST: HAVERI.
3. KUM. SUNITA
D/O. SANGAPPA GADDI,
SINCE DECEASED BY HER LRS-
APPELLANT NO.1.
4. KUM. KAVITA
D/O. SANGAPPA GADDI,
AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
R/O: ALLAPUR,
TQ: HANAGAL, DIST: HAVERI.
...APPELLANTS
(BY SRI. N.S. KINI, ADVOCATE)
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RFA NO.100017 OF 2018
AND
1. SMT. RESHMA
W/O. RAVI VERNEKAR,
AGE: 22 YEARS, OCC: STUDENT,
R/O: BANKAPUR, TQ: SHIGGAON,
DIST: HAVERI.
2. GANESH
S/O. RAVI VERNEKAR,
AGE: 22 YEARS, OCC: STUDENT,
R/O: BANKAPUR, TQ: SHIGGAON,
DIST: HAVERI.
3. SANTOSH
S/O. RAVI VERNEKAR,
AGE: 25 YEARS, OCC: STUDENT,
R/O: BANKAPUR, TQ: SHIGGAON,
DIST: HAVERI.
4. SHANTAPPA
S/O. TIPPANNA SHANKRIKOPPA,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: ALLAPUR, TQ: HANAGAL,
DIST: HAVERI.
5. SMT. IRAVVA
W/O. KANTEPPA DODDAMANI,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: ALLAPUR, TQ: HANAGAL,
DIST: HAVERI.
6. FAKKIRESH
S/O. KANTEPPA DODDAMANI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: ALLAPUR, TQ: HANAGAL,
DIST: HAVERI.
7. MALAKAPPA
S/O. KANTEPPA DODDAMANI,
AGE: 46 YEARS, OCC: AGRICULTURE,
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RFA NO.100017 OF 2018
R/O: ALLAPUR, TQ: HANAGAL,
DIST: HAVERI.
8. CHANNABASAPPA
S/O. KANTEPPA DODDAMANI,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: ALLAPUR, TQ: HANAGAL,
DIST: HAVERI.
9. SHEKHAPPA
S/O. KANTEPPA GADDI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: ALLAPUR, TQ: HANAGAL,
DIST: HAVERI.
10. SMT. SHANTAVVA
W/O. CHANNAPPA GADDI,
AGE: 65 YEARS, OCC: HOUSEHOLD WORK,
R/O: ALLAPUR, TQ: HANAGAL,
DIST: HAVERI.
11. SHANKRAPPA
S/O. CHANNAPPA GADDI,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: ALLAPUR, TQ: HANAGAL,
DIST: HAVERI.
12. NINGAPPA
S/O. CHANNAPPA GADDI,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: ALLAPUR, TQ: HANAGAL,
DIST: HAVERI.
13. SHRIKANTA
S/O. CHANNAPPA GADDI,
SINCE DECEASED BY HIS LR'S
13(a). SMT. SUREKHA,
W/O. SHRIKANTA GADDI,
AGED ABOUT 28 YEARS,
OCC: HOUSEWIFE,
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RFA NO.100017 OF 2018
R/O. ALLAPURA,
HANAGAL, HAVERI.
14. SMT. SHIVALEELA
S/O. HOLABASAPPA SHETTAR,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O: ALLAPUR, TQ: HANGAL,
DIST: HAVERI.
15. CHANNAPPA
S/O. BASAVANNEPPA GADDI,
SINCE DECEASED BY HIS LR'S
WHO ARE ALREADY ON RECORD AS
RESPONDENTS NO.10, 11, 12 & 14.
...RESPONDENTS
(BY SRI. SHIVASAI M. PATIL, ADVOCATE FOR R1-R3, R5-R8;
SRI. VISHWANATH HEGDE, ADVOCATE FOR R4;
NOTICE TO R9, R10, R11, R12, R13(A), R14 SERVED;
R15 IS DEAD, R10-R12, 14 ARE LRS OF DECEASED R15)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF CODE OF CIVIL PROCEDURE PRAYING TO THE JUDGMENT
AND DECREE DATED 23.09.2017 PASSED BY THE COURT OF
SENIOR CIVIL JUDGE AND JMFC, HANAGAL, DISMISSING THE
SUIT IN RESPECT OF SL.NO.1, 4, 5 & 7 OF SUIT SCHEDULE A
PROPERTY MAY KINDLY BE SET ASIDE, AND THE SUIT IN O.S.
NO.7/2007 MAY KINDLY BE DECREED IN FULL WITH COST
THROUGHOUT IN INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.01.2026 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, DELIVERED THE
FOLLOWING:
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RFA NO.100017 OF 2018
CAV JUDGMENT
(PER: THE HON'BLE MRS JUSTICE GEETHA K.B.)
This appeal is filed under Section 96 of CPC by the
appellants questioning the judgment and decree dated
23.09.2017 passed in O.S. No. 7/2007 on the file of Senior
Civil Judge and JMFC., Hangal in dismissing their suit in
respect of item No. 1, 4, 5 and 7 of suit 'A' schedule
properties.
2. Parties would be referred with their ranks, as
they were before the trial Court for sake of convenience and
clarity.
3. Plaintiffs have filed the suit for partition and
separate possession of their 4/5th share in respect of suit
schedule properties by metes and bounds and to declare
that the sale transaction in between defendant No.1 and
defendant Nos.2 to 4 is not binding on the plaintiffs; for
Court costs and for such other reliefs.
4. The case of plaintiffs in nutshell is that suit
schedule property described in schedule 'A' and 'B' are the
RFA NO.100017 OF 2018
joint family properties of plaintiffs and defendant No.1.
Plaintiff No.1 is the wife of defendant No.1 and plaintiff
Nos.2 to 4 are his daughters and they constitute Hindu joint
family. Defendant No.1 is the Manager of joint family and
addicted to bad vices like drinking alcohol, playing cards
and a womanizer and to fulfill those bad vices, he has
wasted the joint family income. Plaintiffs and first
defendant's family is joint family having sufficient income,
there was no necessity for first defendant either to raise
loan or to alienate the properties for the benefit of the joint
family. Scheduled properties are fertile and irrigated lands.
Plaintiff No.2 is a handicapped lady and she is completely
bedridden. Defendant No.1 has not at all looked after her
and neglected to maintain the plaintiffs. There was some
dispute in this regard in between plaintiffs and defendant
No.1., since eight years, Defendant No.1 is residing
separately from the plaintiffs and not maintaining the joint
family. Now, due to his bad habits and ill-treatment to
plaintiffs, they decided to reside separately from the joint
family. Therefore, they demanded their legitimate share in
RFA NO.100017 OF 2018
suit schedule properties with defendant No.1 during
November-2006. However, defendant No.1 denied to give
their legitimate share in the last week of November-2006
and immediately plaintiffs have obtained record of rights of
suit schedule properties and then came to know that
defendant No.1 without family necessity has sold suit item
No.1 in favour of defendant No.3; item Nos.2 & 3 in favour
of defendant No.2 and again defendant No.2 sold one of
those items to defendant No.4. Hence, they are made as
parties to the suit. Defendant No.5 is also having half-share
in suit schedule item No.1. Hence, he is also made as party
to the suit. The tractor and trailer bearing No.KA-37/TA 903
and KA-27/TA-904 are not in possession of the joint family
and not purchased by the joint family. But, plaintiffs came
to know that tractor and trailer are purchased by
mortgaging the joint family properties. Immediately,
plaintiffs have given their objection to the manager of the
bank and expressed that said mortgage is not binding on
plaintiffs. Said tractor and trailer is also not in possession of
joint family. Hence, they are not claiming any share in the
RFA NO.100017 OF 2018
said properties. They further contended that defendant No.1
in collusion with defendant Nos.2 to 5 only with an intention
to grab the equal share of plaintiffs in suit schedule
properties, behind their back has sold item Nos.1 to 3 in
favour of defendant Nos.2 to 4 without family necessity and
not for the benefit of joint family. Hence, the alleged
transactions are illegal, unlawful and not binding on the
shares of plaintiffs. Defendant Nos.2 to 4 knowing fully well
that defendant No.1 has no right, title whatsoever to
alienate the properties, behind the back of plaintiffs has
purchased them without making any enquiry. Therefore, the
alleged transactions are not binding on the plaintiffs. Hence,
suit for appropriate reliefs.
5. Defendant No.1 has filed his written statement
wherein he admitted the relationship between parties and
also admitted that he is the manager of joint family but
denied all other allegations made against him regarding bad
vices, etc. He contended that he had dug six bore wells, out
of which only 2 bore wells were successful and functioning
RFA NO.100017 OF 2018
and from the water of those two bore wells he is irrigating
the lands. He has given good education to plaintiff No.2 by
spending more than ₹.1,00,000/- and got admitted her to
D.Ed. at Harohalli in Kanakapura Taluk by spending more
than ₹.1,00,000/-. He has searched a bridegroom for
plaintiff No.2 and has performed her marriage. By
suppressing these facts, suit is filed. Plaintiff No.2 is not
only doing household work but she is working. Plaintiff No.4
is studying in SSLC and there is no one to assist defendant
No.1, who is working hard in agricultural lands. He denied
all other averments made in the plaint regarding wasting
money and purchasing tractor and trailer and also selling
property without any legal necessity or for family benefit.
Defendant No.1 further took contention that for the purpose
of cultivation of joint family property, he has obtained loan
of ₹.10,000/- as crop loan from SBI, Hangal and as per M.E.
No.443, charge is created on said bank. He has taken loan
of ₹.8,000/- from the same bank in the year 1986 and
accordingly, as per M.E. No.462, charge is created.
Because of irregular monsoons, he could not get good crops
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RFA NO.100017 OF 2018
from the agricultural properties and continuously there was
drought for more than 3 years and thus he could not repay
the loan amount of the bank. Consequently, the Bank has
filed suit against defendant No.1 before Civil Judge(Senior
Division), Haveri for recovery of the loan amount and as he
has mortgaged the property to said bank. He has repaid
the bank loan amount of more than ₹.1,00,000/- and got
redeemed Re-survey No.33/1+2B. For such redemption
and to save other joint family properties, he was compelled
to alienate Re-survey No.41/1+2C measuring 4 acres 18
guntas of Allapur village, Hangal taluk to one Sri.Raveendra
alias Ravi (defendant No.2) for a sum of ₹.1,50,000/- by
executing registered sale deed dated 19.06.2000 and based
on it, under M.E. No.2723 dated 01.10.2000, name of
purchaser is entered in revenue records and it is certified.
Plaintiffs are aware about these facts. They were aware
that, the said sale is for legal necessity of the family and
thus, they kept quiet for all these years. Likewise,
defendant No.1 has alienated Re-survey No.33/1+2B/1+2B
measuring 3 acres 13 guntas of Allapur Village, Hangal
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RFA NO.100017 OF 2018
Taluk for valuable consideration to defendant No.2, who
alienated the same to one Kantappa i.e., defendant No.4 for
a sum of ₹.1,00,000/- under a registered sale deed dated
06.02.2004. Based on it, his name appeared in record of
rights as per M.E.No.638 dated 24.03.2004. Accordingly,
defendant No.4 became absolute owner of said property.
Defendant No.1 and plaintiffs are living together. Defendant
No.1 is the only sole surviving coparcener and manager of
the family, he got absolute right to deal with family
properties for family necessities. His rights cannot be
curtailed by taking injunction order. Defendant No. 1, for
benefit of joint family and to cultivate the remaining family
properties has purchased tractor bearing No.KA-27/TA-903
and trailer bearing No.KA-27/TA-904 by obtaining loan from
SBM, Haveri by mortgaging the suit schedule properties on
28.11.2006, since it is very difficult to get labourers to
cultivate the properties, it is defendant No.1 who is working
hard day and night to look after the joint family. The
brother of plaintiff No.1-Dundappa Shivappa Nandikatti of
Narayanpura-Shiggaon instigated the plaintiffs with a
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RFA NO.100017 OF 2018
jealous nature to destroy the family is the cause for filing
present false suit. Hence, prayed for dismissal of suit with
compensatory costs of ₹.3,000/-.
6. Defendant No.4 filed his written statement
wherein he has taken similar contentions taken by
defendant No.1 in his written statement. He further
contended that even after filing the suit, defendant No.1 is
acting as manager of the joint family, has solemnized the
marriage of plaintiff No.2 by spending huge amount. Hence,
the suit is not maintainable in law. Hence, prayed for
dismissal of suit with compensatory costs of ₹.5,000/-.
7. Defendant No.3 has filed his written statement
wherein he has also taken similar contention taken by
defendant No.1 and further contended that the suit is bad
for non-joiner of necessary parties and properties, as the
other properties are not included in the suit and in owners'
column of those properties, names of other persons are
included. He further took contention that defendant No.1
considered his daughters as his sons because he is not
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RFA NO.100017 OF 2018
having any male issue and has provided good education to
them and also performed the marriage of plaintiff No.2 and
plaintiff No.4 by spending huge amount. He has further
taken contention that since 1991, defendant No.1 is
obtaining crop loan and other loans from the agricultural
Co-operative Bank Ltd., and also from State Bank, Hangal
and from other financial institutions. He has stated about
filing of O.S.No.69/1994 against defendant No.1 by the
bank for recovery of loan amount and for sale of mortgaged
property and at that time, defendant No.1 sold the property
to defendant No.3 and defendant No.3 has cleared the bank
loans. Defendant No.1 has sent second plaintiff to
Bengaluru for her higher education and also spent huge
amount for treatment of plaintiff No.3 and was working hard
to fulfill the legitimate demands of plaintiffs. The suit
schedule properties are not properly valued and court fee
paid under Section 35(1) of the Karnataka Court Fees and
Suits Valuation Act, 1958 is improper because already some
of the properties are alienated and thus plaintiffs are not in
joint possession of those properties and they have to pay
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RFA NO.100017 OF 2018
Court fee on market value on ₹.1,50,00,000/- and hence
prayed for dismissal of suit with costs.
8. After completion of pleadings and framing of
issues, on behalf of plaintiffs, plaintiff No.2 was examined
as P.W.1, examined a witness as P.W.2 and another witness
as PW.3 and got marked Ex.P.1 and Exhibit P.25 before trial
court.
9. On behalf of defendants, they examined DW.1 to
DW.4 and got marked Exs.D.1 to D.39 and closed their side
before trial court.
10. After recording evidence of both sides and
hearing arguments of both sides, the trial Court decreed the
suit in respect of some of the suit properties, but dismissed
the suit in respect of item Nos. 1, 4, 5 and 7 of suit
schedule properties on the ground that they were already
alienated by defendant No.1 for valuable consideration, for
legal necessity and family benefit.
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RFA NO.100017 OF 2018
11. Aggrieved by the said judgment and decree,
plaintiffs have preferred the present appeal.
12. During pendency of this appeal, plaintiff No.3
died without marriage, plaintiff No.1 being her mother is her
legal representative. During pendency of the suit, defendant
No.1 died and plaintiffs are his legal representatives. During
pendency of the suit, defendant No.2 died and his legal
representatives are brought on record as defendant
Nos.2(A) to 2(C); Defendant No.4 died and his legal
representatives were brought on record as Defendant
Nos.4(A) to 4(D). Respondents Nos.13 & 15 are also no
more and defendant No.15 is represented by his legal
representative i.e. respondent No.15(A).
13. Learned counsel for appellants Sri N.S.Kini would
submit that plaintiff No.1 is the wife and plaintiffs No.2 to 4
are daughters of defendant No.1. Defendant No.1 has
alienated Item Nos.1, 4 & 5 of suit schedule properties to
defendants No.2 to 4 without any legal necessity and not for
family benefit. Admittedly, all those properties are ancestral
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RFA NO.100017 OF 2018
and joint family properties of plaintiffs and defendant No.1.
He would further submit that defendant No.1 was addicted
to bad vices like drinking alcohol, gambling and womanizer
and for his unlawful and illegal activities, he sold those
properties. Plaintiffs No.2 to 4 were his minor daughters at
the time of alleged sale deeds. Even though Hindu
Succession (Amendment) Act, 2005 (for short, Act of 2005)
had not come into force at that time, but Amendment was
made on 03.07.1994 by insertion of Section 6-A by
Karnataka Amendment (Act 23 of 1994) in the Hindu
Succession Act, 1956 and according to this Act, the
daughters who were not married at that time were treated
as coparceners. Hence, plaintiffs being minor daughters at
the time of alienation were coparceners of the family and
thus first defendant could not have sold those properties
without any family benefit or legal necessity. Defendants
have produced some concocted receipts to show that
defendant No.1 has dug bore well in his properties and for
that purpose, he has obtained loan. However, most of those
documents are duplicate documents or replica of already
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RFA NO.100017 OF 2018
produced documents i.e., Exs.D.6 and D.13, D.7 and D.4,
D.8 and D.9 are one and the same documents. Moreover,
the author of those documents is not examined and for
which survey-number of property, the bore well is being
dug is not mentioned in those documents. Hence, all of
them are concocted and created documents.
14. Learned counsel for appellants would further
submit that the joint family was having huge properties and
there was no occasion to obtain loan from the banks for the
welfare of the family and for management of the properties.
Defendant No.1 only for his bad vices has obtained loan
from bank and other institutions alleging as agricultural
loan. Hence, the alleged sale deeds executed in favour of
defendants No.2 & 3 by defendant No.1 is not binding on
the share of plaintiffs. Third plaintiff was a handicapped girl
and no proper treatment was given to her by defendant
No.1. The welfare of plaintiffs was not at all looked by
defendant No.1. It is only plaintiff No.1 with the assistance
of her parental house has looked after plaintiffs No.2 to 4
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RFA NO.100017 OF 2018
and has given good education to them and not defendant
No.1. However, learned Trial Judge has not considered
these aspects and wrongly dismissed the suit in respect of
Item Nos.1, 4, 5 & 7 of suit 'A' schedule properties.
Furthermore, during pendency of the suit, first defendant
died and during pendency of this appeal, third plaintiff died.
Hence, as it is, only plaintiffs No.1, 2 & 4 are there and
share of plaintiff No.3 to be allotted to plaintiff No.1 and
hence prayed for modification of the shares and also prayed
for granting decree in respect of Item Nos.1, 4, 5 & 7 of suit
'A' schedule properties.
15. Sri Shivasai M Patil, learned counsel for
respondents No.1 to 3 and 5 to 8 would submit that there is
ample evidence produced before the Trial Court to show
that defendant No.1 has acted prudently on behalf of the
joint family and only to protect the interest of joint family
and to protect the remaining properties intact, defendant
No.1 has executed sale deeds in respect of the aforesaid
Item Nos.1, 4 & 5 of suit 'A' schedule property. Defendants
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RFA NO.100017 OF 2018
No.2 and 3 are bonafide purchasers for value received from
defendant No.1. They have made proper enquiries.
Defendant No.1 was not addicted to any bad vices as
alleged in the plaint. On the other hand, he has looked after
plaintiffs well and it has come in the evidence of plaintiffs
that defendant No.1 was visiting the house of plaintiffs and
was looking after them. Under Ex.P.2 dated 19.06.2000,
defendant No.1 has sold Item No.5 of suit 'A' schedule
property bearing Re-Sy.No.41/1+2C measuring 4 acres 18
guntas for a sum of ₹.1,50,000/- to defendant No.2. Before
that, the suit filed by the bank in O.S.No.69/1994 as per
Ex.D.39 for recovery of the loan amount based on mortgage
was already decreed.
16. Learned counsel for respondents No.1 to 3 and 5
to 8 would further submit that defendant No.1 has sold
Item No.4 of suit 'A' schedule property bearing Re-
Sy.No.33/1+2B/1+23 measuring 3 acres 13 guntas for a
sum of ₹.73,000/- to defendant No.2. In turn, defendant
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RFA NO.100017 OF 2018
No.2 has sold said property to defendant No.4 for a sum of
₹.1,00,000/- under registered sale deed dated 06.02.2004.
17. Learned counsel for respondents would further
submit that as far as Item No.1 of suit schedule property is
concerned, it was standing in the joint names of defendant
No.1 and his brother defendant No.5. Both of them together
sold Item No.1 of suit schedule property bearing Sy.No.2
measuring 9 acres 34 guntas under Ex.P.3 to defendant
No3.
18. As far as Item No.7 of suit schedule property is
concerned, P.W.1 in her affidavit evidence and D.W.4 in his
evidence have categorically stated that even though this
property is standing in the joint names of defendant No.1
and others, there was partition between defendant No. 1
and his brothers long back and in that partition, this Item
No.7 of Suit 'A' schedule property bearing Re-Sy.No.9999,
P.R.No.5 measuring 1 acre 26 guntas was fallen to the
share of defendant No.7. Considering these aspects, rightly
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RFA NO.100017 OF 2018
the Trial Court has dismissed the suit in respect of Item
Nos.1, 4, 5 and 7. Hence, it requires no interference.
19. Learned counsel for respondents No.4 would
adopt the arguments of learned counsel for respondents
No.1 to 3 and 5 to 8 and would pray for dismissal of the
appeal.
20. Having heard the arguments of both sides and
upon verifying the Trial Court records, the points that would
arise for consideration are:
"1.Whether the appellants/plaintiffs prove that
the learned Trial Judge erred in holding that sale
of Item Nos.1, 4 and 5 is for legal necessity and
family benefit and Item No.7 was fallen to the
share of defendant No.7 in the earlier family
partition that had taken place between defendant
No.1 and his brothers?
2. Whether the judgment and decree passed by
the learned Trial Judge is erroneous?
3. Whether the judgment and decree of Trial Court
requires interference?
4. What order or decree? "
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RFA NO.100017 OF 2018
21. Findings on the above points are in NEGATIVE
for the following:
REASONS
i. The admitted facts of the case are that plaintiff No.1 is
wife, plaintiffs No.2 to 4 are daughters of defendant No.1
and in the earlier partition that had taken place between
defendant No.1 and his brothers, some of the properties
were inherited and succeeded by defendant No.1. Plaintiffs
No.2 to 4 being his unmarried daughters at the time of
alienation of Item Nos.1, 2 & 5 were coparceners by birth
with defendant No.1 as per Section 6-A of the Karnataka
Amendment (Act 23 of 1994). Under those circumstances,
defendant No.1 being the eldest male members of the
family and father of plaintiffs No.2 to 4 is the Kartha of the
joint family. Plaintiffs cannot dispute this. Kartha is having
every right to alienate the ancestral and joint family
properties for the benefit of family or for legal necessity. If
he alienates any ancestral property as Kartha, then such
alienation binds other members or other coparceners of
HUF.
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RFA NO.100017 OF 2018
ii. In this regard, learned counsel for respondents relied
upon the judgment of Hon'ble Apex Court in Civil Appeal
No.5340/2017 dated 16.09.2025 (Dastagirsab vs.
Sharanappa @ Shivasharanappa Police Patil (D) by
LRs. and Others). In the aforesaid judgment, the Hon'ble
Apex Court relied upon the judgment of Apex Court in
Beereddy Dasaratharami Reddy vs. V. Manjunath and
Another reported in (2021) 19 SCC 263, wherein His
Lordship held at para No.11 and relied upon Hindu Law by
Mulla at Article No.254 and 241 as follows:
"11. xxxxx
6. Right of the Karta to execute agreement to sell or sale
deed of a joint Hindu family property is settled and is
beyond cavil vide several judgments of this Court including
Sri Narayan Bal v. Sridhar Sutar (1996) 8 SCC 54],
wherein it has been held that a joint Hindu family is
capable of acting through its Karta or adult member of the
family in management of the joint Hindu family property. A
coparcener who has right to claim a share in the joint
Hindu family estate cannot seek injunction against the
Karta restraining him from dealing with or entering into a
transaction from sale of the joint Hindu family property,
albeit post alienation has a right to challenge the alienation
if the same is not for legal necessity or for betterment of
the estate. Where a Karta has alienated a joint Hindu
family property for value either for legal necessity or
benefit of the estate it would bind the interest of all
undivided members of the family even when they are
minors or widows. There are no specific grounds that
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RFA NO.100017 OF 2018
establish the existence of legal necessity and the existence
of legal necessity depends upon facts of each case. The
Karta enjoys wide discretion in his decision over existence
of legal necessity and as to in what way such necessity can
be fulfilled. The exercise of powers given the rights of the
Karta on fulfilling the requirement of legal necessity or
betterment of the estate is valid and binding on other
coparceners.
7. Elucidating the position in Hindu law, this Court in Kehar
Singh v. Nachittar Kaur (2018) 14 SCC 445 has referred to
Mulla on Hindu Law and the concept of legal necessity to
observe thus: (SCC pp. 449-51, paras 20-21 & 26)
"20. Mulla in his classic work Hindu Law while dealing with
the right of a father to alienate any ancestral property said
in Article 254, which reads as under:
'Article 254
254. Alienation by father.--A Hindu father as such has
special powers of alienating coparcenary property, which
no other coparcener has. In the exercise of these powers
he may:
(1) make a gift of ancestral movable property to the
extent mentioned in Article 223, and even of ancestral
immovable property to the extent mentioned in Article
224;
(2) sell or mortgage ancestral property, whether movable
or immovable, including the interest of his sons, grandsons
and great-grandsons therein, for the payment of his own
debt, provided the debt was an antecedent debt, and was
not incurred for immoral or illegal purposes (Article 294).'
21. What is legal necessity was also succinctly said by
Mulla in Article 241, which reads as under:
'Article 241
241. What is legal necessity.--The following have been held
to be family necessities within the meaning of Article 240:
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(a) payment of government revenue and of debts which
are payable out of the family property;
(b) maintenance of coparceners and of the members of
their families;
(c) marriage expenses of male coparceners, and of the
daughters of coparceners;
(d) performance of the necessary funeral or family
ceremonies;
(e) costs of necessary litigation in recovering or preserving
the estate;
(f) costs of defending the head of the joint family or any
other member against a serious criminal charge;
(g) payment of debts incurred for family business or other
necessary purpose. In the case of a manager other than a
father, it is not enough to show merely that the debt is a
preexisting debt;
The above are not the only indices for concluding as to
whether the alienation was indeed for legal necessity, nor
can the enumeration of criterion for establishing legal
necessity be copious or even predictable. It must therefore
depend on the facts of each case. When, therefore,
property is sold in order to fulfil tax obligations incurred by
a family business, such alienation can be classified as
constituting legal necessity.'
(See Hindu Law by Mulla "22nd Edition".)
***
26. Once the factum of existence of legal necessity stood
proved, then, in our view, no co-coparcener (son) has a
right to challenge the sale made by the karta of his family.
The plaintiff being a son was one of the co-coparceners
along with his father Pritam Singh. He had no right to
challenge such sale in the light of findings of legal necessity
being recorded against him. It was more so when the
plaintiff failed to prove by any evidence that there was no
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legal necessity for sale of the suit land or that the evidence
adduced by the defendants to prove the factum of
existence of legal necessity was either insufficient or
irrelevant or no evidence at all."
iii. Thus, it is first defendant being Kartha of the joint
family was having every right to alienate the property for
the purpose of family benefit and legal necessity. The other
coparceners can challenge such alienation only on the
ground that those properties were not sold for family
benefit or legal necessity and the Kartha was wasting the
money for his bad vices.
iv. In the instant case, plaintiffs have taken specific
contention in the plaint that defendant No.1 was addicted to
bad vices i.e., he was addicted to alcohol, gambling and he
was womanizer.
v. To substantiate these aspects, no iota of evidence is
produced before the Trial Court or before this Court. It is
only stated in the affidavit evidence of P.W.1 and she
denied the suggestions that defendant No.1 was not a
gambler, not addicted to alcohol or not womanizer. P.W.1
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being the daughter of defendant No.1 will have first hand
information that to which place this first defendant was
going to drink alcohol or to play gambling etc., but she has
not deposed those specific details.
vi. On the other hand, she has categorically admitted that
defendant No.1 is the manager of the joint family.
Furthermore, she has categorically deposed that she has
studied degree and also D.Ed. She denied the suggestion
that first defendant has looked after her and her educational
expenses. But first plaintiff being a housewife was not
having any independent income to look after these
expenses of plaintiffs No.2 to 4. It is to be noted that
plaintiff No.2 has deposed that her maternal uncle has
helped them in their day to day affairs and also in looking
after their education. However, said maternal uncle is not
examined to substantiate her case.
vii. It is an admitted fact that plaintiff No.3 was
handicapped and suffering from several ailments and during
the pendency of this appeal she died without marriage and
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thus her mother is her only legal heir. It is the contention of
first defendant that he is the only male member in the
family who can look after agriculture and according to him
he was working very hard on every day and there was no
one for substitute. He has taken further contention that the
expenses of looking after agricultural properties are
becoming more and more as the time passes. In this
regard, in the cross-examination, P.W.1 categorically
admitted that after separating from his other brothers, first
defendant was cultivating suit schedule properties with the
help of labourers and the wages of labourers increased
since 15-20 years because the working male members
would go to Mangaluru and Goa for work and there is a
huge scarcity of labourers in their place and hence their
wages has become high. She has also admitted that earlier
they were only using cow dung as fertilizer and since 20
years they are using chemical fertilizers and also pesticides
and since 20 years they are applying pesticides for all the
crops and earlier they were using pesticides only for cotton
crop and because of these things the expenses to maintain
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and to get yield from landed properties is becoming more
and more. She has also admitted that since 15-20 years,
there was no proper rain at proper time and thus it is
becoming difficult to get crop and yield.
viii. P.W.1 further admitted that her father was purchasing
the seeds, fertilizers, etc. from city and after he became
separated from his brothers, he himself was selling the
yields of the agricultural property. She admits that her
father was giving some money to her and her mother for
purchasing the groceries and for other day-to-day
expenses.
ix. On careful perusal of the sale deeds produced in this
case as discussed above, the sale deeds were executed in
between June-2000 and March-2002.
x. Even though P.W.1 has deposed that she does not
know about the sale, loan taken by her father from
Societies and Banks, it is defendants who have produced
certified copy of judgment and decree passed in
O.S.No.69/1994 and it was decreed in the year 1999. Said
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judgment and decree is a mortgage decree. Hence, if
defendant No.1 has not repaid the amount to bank, then
bank could have filed FDP proceedings and put the property
in auction. Under those circumstances, if property is put to
auction, the defendant No.1 cannot presume the value that
he may get. On the other hand, if he himself made efforts
to sell the property, he would get proper market value for
the sale. Hence, to avoid those things, he has sold some of
the suit schedule properties. It is also come on record that
after such sale, one of the purchasers has cleared the entire
bank loan.
xi. In the further cross-examination, P.W.1 categorically
admitted that except the income from agriculture there was
no other source of income to their family from 2000 to
2002. After partition between her father and his other
brothers, the properties which were fallen to the share of
her father were properly and correctly mutated into the
name of her father. She also admitted that after such
mutation i.e., after separation from his brothers by
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defendant No.1 till sale of properties on 19.06.2000 and
subsequently Khata and Pahani were standing in the name
of defendant No.1 and he has mortgaged the agricultural
properties to VSSN Bank, SBI and other societies and it is
also noted in RTCs.
xii. It is not the case of plaintiffs that Item Nos.1, 4 & 5
suit schedule properties were sold for a throwaway price.
They have not produced any material to show that these
properties were sold for lesser sum than the market value.
xiii. About 2 - 3 months of filing the suit, plaintiff No.2 was
married. It is the contention of defendants that first
defendant has spent huge amount for the purpose of her
marriage but material is not produced. Anyway, first
defendant being father would spend a reasonable amount
for the purpose of marriage of second plaintiff. She has
admitted that the value of landed properties increased and
the total value of suit schedule properties worth more than
Rupees 1.5 Crores. Thus, inference could be drawn that
only to get back those properties, plaintiffs have filed the
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suit. In the plaint, plaintiffs contended that defendant No.1
has purchased tractor and trailer and it is not in their family
and they are not using it. She admits that her father has
purchased said tractor by obtaining loan from the bank.
xiv. It is the contention of defendant No.1 that he dug 6
times bore wells in his properties. But only two of them
became succeeded and other four became failed and hence
he incurred a huge amount to dig the bore wells. In this
regard, some bore well receipts issued by Reena Agro Wells
and Venus Bore wells are produced in this case. On careful
perusal of all those receipts, it is noted that Ex.D.6 and
D.13; D.7 and D.14; D.8 and D.9 are one and the same
documents. Since from 1998 till 2002, defendant No.1 has
made several efforts to dug bore well in his properties and
only two of such efforts became successful. Even then
P.W.1 in her cross-examination has deposed that no bore
well is standing in their properties, which is contrary to the
documentary evidence produced in this case.
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xv. To substantiate the contention of plaintiffs, they have
examined two witnesses as P.W.2 and P.W.3. P.W.2 in his
affidavit evidence has stated about the bad vices of
defendant No.1. In this regard, in the cross-examination, he
has deposed that at no point of time defendant No.1 joined
him for playing O.C. Espit (gambling). He has not stated
that defendant No.1 was playing gambling in Bankapur. He
never had been to receive the money from defendant No.1
to those places. Under those circumstances, how this P.W.2
can depose about the bad vices of defendant No.1. On the
other hand, the purchasers have categorically deposed that
defendant No.1 was hard working person and he was alone
looking after his properties, etc. Nothing was elicited in their
cross-examination on these points.
xvi. P.W.3 has filed only affidavit evidence, but after
remand, has not appeared and not faced the cross-
examination. Hence, his evidence is not useful to the
plaintiff.
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xvii. D.W.2 is the brother of defendant No.4 and he has
given evidence on behalf of LRs. of defendant No.2 because
during pendency of the suit, defendant No.2 died. He is not
stranger but he is fully aware about the family affairs of
defendant No.1, his brothers and plaintiffs.
xviii. It is to be noted here that all the properties, which
were fallen to the share of first defendant in family partition
were dry lands and thus they were not giving good yields.
In one of the sale deeds, defendant has mentioned that to
purchase other properties and as this property was not
giving good yield, he and his another brother i.e., defendant
No.5 together sold Item No.1 of suit schedule properties.
Thus, proper reason is assigned for sale. Even in other sale
deeds also, there is specific mention that for family
necessity and to clear the loans of banks and societies, this
defendant No.1 sold those properties. He denied all the
suggestions or all the contentions of plaintiffs in their plaint
at the time of his cross-examination.
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xix. Before leading evidence, defendant No.1 died and has
only filed his written statement. Hence, the averments in
written statement of defendant No.1 will have some
evidentiary value. Even though the family of plaintiffs and
defendant No.1 were having some other properties i.e.,
tractor and trailer and other house properties, they were
not included in this suit.
xx. Defendant No.3 is examined as D.W.3 and he has also
stated the contentions of defendants. His cross-examination
reveals that he has made proper enquiry before purchasing
the property with bank and as he was ready and willing to
repay the loan amount, he has purchased the property from
defendant No.1. It is an admitted fact that the original
propositus was having two sons i.e., Kanthappa and
another. Kanthappa was having three children i.e.,
Channappa, Shekhappa and first defendant-Sangappa. Said
Channappa was no more and his wife and children are
defendants No.6 to 9. This Shekhappa is defendant No.5
and he has not contested the suit. This defendant No.5
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along with defendant No.1 has sold one of the suit schedule
properties, as discussed above.
xxi. Defendant No.7 is examined as D.W.4. He has
supported the entire case of plaintiffs in his affidavit
evidence. But in cross-examination has categorically
admitted that there was partition between his father and
other brothers, but it was not a registered partition. He
does not know anything about purchase of tractor and
where it is. He is not having any first-hand information
about the personal life of family of plaintiffs and defendant
No.1. This is more so because he studied in Dharwad at
Muruga Matha and he was residing at that time in Muruga
Matha, Dharwad and not at the place where the plaintiffs
and defendant No.1 were residing i.e., Allapur. After
completion of his education, he is working since 4 years at
Hubballi and residing there only.
xxii. In the cross-examination, he has admitted that
defendant No.1 has taken loan from banks by mortgaging
some of the joint family properties and utilized the amount
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for development of those properties. Since 2015 he is
residing at Allapur. However, before that when all these
transactions had taken place, he was not at all in the
village, but he was studying in Dharwad and working in
Hubballi and residing in those places. Even though in his
affidavit evidence, D.W.4 stated that no tractor is with
defendant No.1 and he has mortgaged the property only to
purchase tractor and gave said tractor to some other
persons, but in the cross-examination, he categorically
admitted that first defendant was also having tractor and he
was tilling his property through his tractor and admitted
that there was huge scarcity of labourers and hence first
defendant has purchased tractor. He could not mention
even the name of one woman with whom first defendant
was having illicit relationship. He admitted that notice was
issued as per Ex.D.3 to defendant No.1 that they are going
to auction the properties of defendant No.1 for clearance of
loan amount. Even though he is a family member, he does
not know how many properties have fallen to the share of
first defendant and what his requirement was and how he
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RFA NO.100017 OF 2018
was spending money, etc. According to this witness,
defendant No.1 has put up a small house in his landed
properties and was residing there and the house property
which was fallen to the share of defendant No.1 in the
family partition is being used by plaintiffs and they are
residing in that house and defendant No.1 was often visiting
them, but plaintiffs have not looked after defendant No.1
during the fag end of his life.
xxiii. On careful perusal of the aforesaid evidence put forth
by both parties, it is crystal clear that defendant No.1 was
residing in his own property only to look after the landed
properties because there was no one to look after those
properties, but allowed his wife and children to live in the
village and made all arrangements to his children to go to
the schools and colleges and to study well. Plaintiff No.2
studied up to D.Ed. and at the time of filing the suit,
plaintiff No.4 was in SSLC and she completed her PUC
during pendency of the suit. Because plaintiff No.3 was
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handicapped and unable to walk, it appears that she has not
pursued her higher education.
xxiv. Plaintiffs have not produced any material to
substantiate their contention of bad vices of first defendant.
It has come on record that there was drought for
continuous several years and because of that first defendant
has sustained loss in agriculture and even though he dug
bore wells several times, most of them were unsuccessful
but he succeeded only twice and furthermore, he has
obtained loan from banks and societies for development of
agriculture lands only. Not even a single document is
produced to show that first defendant has taken private
loans with moneylenders, but he has taken loan from
established nationalized banks and societies. Furthermore,
suit is also filed against him by the State Bank of India to
repay loan amount as he failed to repay the loan amount
and it was decreed. First defendant has contested the suit
and it is not a simple exparte decree. It took five years to
dispose of the said suit, which itself shows that there was
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proper contest by defendant No.1 in that suit. If really the
first defendant was addicted to bad vices, he would not
have contested the suit filed by the bank. He acted
prudently as Kartha of the family.
xxv. As discussed earlier, Kartha of the family is having
special powers to alienate coparcenery property, which
binds other coparceners also. The legal necessity includes
clearance of debts of the family. Once existence of legal
necessity is established, then other coparceners have no
right to challenge the sale made by Kartha of the family.
xxvi. Under these circumstances, considering these aspects
in a right and proper perspective, rightly the Trial Court has
dismissed the suit in respect of the sold properties by
defendant No.1 i.e., Item Nos.1, 4 & 5.
xxvii. As far as Item No.7 is concerned, it is fallen to the
share of defendants No.6 to 9. Plaintiffs were not having
any right over the said property. Hence, suit cannot be
decreed in respect of the said property. Accordingly, it was
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dismissed. The Trial Court has decreed the suit in respect of
remaining properties.
xxviii. As on today, defendant No.1 is no more and his share
will be equally distributed to the plaintiffs. Thus, plaintiffs
would get 1/4th share each in the joint family and ancestral
properties. Presently, plaintiff No.3 is no more and her
share is to be allotted to plaintiff No.1 as plaintiff No.1 is
the only legal heir of plaintiff No.3.
xxix. In view of the above discussion, we proceed to pass
the following:
ORDER
Appeal filed under Section 96 of CPC is dismissed by
confirming the judgment and decree dated 23.09.2017
passed in O.S.No.7/2007 on the file of Senior Civil Judge
and JMFC., Hangal.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
Sd/-
(GEETHA K.B.)
JUDGE
HMB upto para 12
SH, CT-MCK
