Partly allowed

Smt Gowramma W/O Late Muniswamy Naidu v. Sri Venkataramappa Dead by L.Rs Smt Channamma

Karnataka HC21 Dec 2020RSA/741/2006

Case brief

AI extract

What is this about?

The High Court of Karnataka upheld the appellate court's decision reversing the trial court in a property suit. The court found that the trial judge erred in dismissing the plaintiff's claim, declaring him the owner after a sale by a donee who had previously conceded the gift deed's invalidity in a connected suit.

What did the court decide?

RSA No.739/2006 and RSA No.741/2006 dismissed; suit of plaintiffs in O.S.No.198/85 decreed as prayed for.

Smt Gowramma W/O Late Muniswamy Naidu Vs Sri… — Succession and Inheritance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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R.S.A.No.739 OF 2006 C/W R.S.A. No.741 OF 2006

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In RSA No.739/2006

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BETWEEN:

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Sri. Muniswamy Naidu S/o. Pitchaka Venkataramaiah Aged about 60 years

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Smt. Lakshmamma W/o. Papaiah Naidu Aged about 56 years

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Sri. Chandrappa S/o. Papaiah Naidu Aged about 40 years

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Sri. Ravindra S/o. Papaiah Naidu Aged about 38 years

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Appellants 1 to 4 are residing At Kulur Village, Bethamangala Hobli Bangarpet Taluk Kolar District – 563 101

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...Appellants

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(By Sri.N.Murali, Advocate; Appeared through physical hearing)

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AND:

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Smt.Channamma W/o. Venkataramappa Since deceased represented by LRs R2 to R4

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Smt. Muneamma D/o. Venkataramappa Major

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Sri. Ramachandra S/o. Venkataramappa Aged about 37 years

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Sri. Srinivasa S/o. Venkataramappa Aged about 35 years

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Respondent Nos.1 to 4 are Residing at Kulur Village Bethamangala Hobli Bangarpet Taluk Kolar District – 563101

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Smt. Gowramma W/o. Muniswamy Naidu Since dead by LRs

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5(a). Sri.B.M.Gopal

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S/o. late Gowramma & Muniswamy Naidu Aged about 57 years R/at. Kolur Village, Bethamangala Hobli Bangarpet Taluk Kolar District

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5(b). Smt. Jayamma

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W/o. Bachhanna

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D/o. late Gowramma & Muniswamy Naidu

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Aged about 55 years R/at. Madiwala Village, Mothakapalli post Mulabagilu Taluk Kolar District

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5(c). Smt. Kanthamma W/o. Venkatarama Naidu @ Abbodu Aged about 52 years D/o. late Gowramma & Muniswamy Naidu R/at. Valumula Dinne Village & Post Punganur Taluk Chittor District Andrapradesh state

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5(d). Honorappa

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S/o.Muniswamy Naidu Aged about 43 years R/o. Kannur Village Bethamangala Hobli Bangarpet Taluk Kolar District - 563101

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…Respondents

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(By Sri.G.Papi Reddy, Advocate, for R2 to R4 (Lrs of R1), Appeared through physical hearing) Sri.K.Ananda, Advocate, for R5(a-d) and R6 who is R5(d) already on record (Through VC)

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This RSA is filed u/S 100 of CPC., against the judgment and decree dated: 21.11.2005 passed in R.A.No.9/2001 on the file of the C.J. (Sr.Dn.) K.G.F., allowing the appeal and setting aside the judgment and decree dated 20.9.2000 passed in O.S.No.198/1985 on the file of the II Addl. Civil Judge, (Jr.Dn.), K.G.F.

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RSA No.741 of 2006

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Between

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Smt. Gowramma W/o. late Muniswamy Naidu Since dead by L.Rs

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1(a). Sri B.M.Gopal S/o. late Gowramma & Muniswamy Naidu Aged about 59 years Residing at Kolur Village Bethamangala Hobli Bangarpet Taluk Kolar District

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1(b). Smt. Jayamma

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W/o. Bachanna D/o. late Gowramma & Muniswamy Naidu Aged about 57 years Residing at Madiwala Village Mothakapalli Post Mulabagilu Taluk Kolar District

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1(c). Smt. Kanthamma

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W/o. Venkataramana Naidu @ Abbodu D/o. late Gowramma & Muniswamy Naidu Aged about 54 years R/at. Valumula Dinne Village & Post Punaguru Taluk Chittor District Andra Pradesh

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Sri. Honorappa S/o. Muniswamy Naidu Aged about 39 years R/o. Kulur Village

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Bethamangala Hobli Bangarapete Taluk Kolar District

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…Appellants

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(By Sri K.Ananda, Advocate Appeared through VC)

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AND

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Sri. Venkataramappa Dead by L.Rs

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Smt. Channamma W/o. late Venkataramappa Major

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Smt. Munemma D/o. late Venkataramappa Major

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Sri. Ramachandra S/o. late Venkataramappa Major

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Sri. Srinivasa S/o. Venkataramappa Major

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Respondents 1 to 4 are Residing at Kulur Village Bethamangala Hobli Bangarpet Taluk Kolar District

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Sri. Muniswamy Naidu S/o. Pichaka Venkataramaiah Aged about 50 years

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Papaiah Naidu by L.Rs

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Smt. Lakshmamma W/o. late Papaiah Naidu Aged about 50 years

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Sri. Chandrappa S/o. late Papaiah Naidu Aged about 36 years

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Sri. Ravindra S/o. late Papaiah Naidu Aged about 35 years

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Respondents 6 to 8 are residing at Kulur village, Bethamangala Hobli Bangarpete Taluk, Kolar District

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…Respondents

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(By Sri G.Papi Reddy, Advocate for R2 and R4 (LRs of R1) Sri. N.Murali, Advocate for R5 and R6 Appeared through physical hearing

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This RSA is filed under Section 100 of CPC against the judgment and decree dated 21.11.2005 passed in R.A.No.9/2001 on the file of the Civil Judge (Sr.Dn.), K.G.F, allowing the appeal and setting aside the judgment and decree dated 20.09.2000 passed in O.S.No.198/1985 on the file of the II Additional Civil Judge (Jr.Dn.) K.G.F.

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These RSAs Coming on for orders this day, the Court delivered the following:

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JUDGMENT

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These appeals are directed against the judgment and decree dated 21.11.2005 passed in

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R.A.No.9/2001 on the file of Civil Judge (Sr.Dn.) at Kolar Gold Fields, wherein the appeal came to be allowed and the judgment and decree dated 20.09.2000 passed in O.S.No.198/1985 on the file of II Additional Civil Judge (Jr.Dn.) KGF was set aside, in the result, the suit of the plaintiff was decreed declaring that he is the absolute owner of the suit schedule property and the decree passed in O.S.No.328/1983 is not binding on him and he was also granted permanent injunction against the defendants regarding possession of the property.

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Being aggrieved by the said judgment

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passed in regular appeal, these appeals are filed by defendants 1 to 3 and 4 and 5. Since, the appeals are

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filed against the common judgment, they are taken up

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for common disposal.

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3. In order avoid confusion and overlapping,

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the parties are referred as per their ranks as held by them before the trial Court.

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RSA No.739/2006 is preferred by

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Muniswamy Naidu – defendant No.4 and Papaiah Naidu – defendant No.5, since dead represented by legal representatives – Lakshmamma, Chandrappa and Ravindra.

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RSA No.741/2006 is filed by defendant Nos.1 to 3 they are:

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Smt. Gowramma Since dead by LRs.

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1(a). B.M.Gopal

1(b). Smt. Jayamma

1(c). Smt. Kanthamma

Sri. Honorappa

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Before adverting to the other aspects of the case, it is necessary to mention about the preamble. The common propositus is the senior most ancestor one Pitchaka Ramappa, he had three sons namely: - 1) Pitchaka Venkataramaiah, 2) Pitchaka Venkatappa and 3) Pitchaka Muneppa.

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After the death of Pitchaka Ramappa, his

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sons divided the property. At this stage, the focus is

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made on the properties that fell to the share of Pitchaka Venkatappa, the middle brother and he is in

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the possession of 21 guntas of land in Sy.No.41/3 of Guluru Village. Among other properties, it is Pitchaka Venkatappa enjoyed the schedule property and other properties for 25 years and Salamma is his wife. Gowramma- defendant No.1 is the daughter of

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Salamma. The said Salamma who is the mother of the Gowramma gifted the property to Gowramma under the registered gift deed on 30.01.1951, due to love and affection. Thus, the ownership of the property transferred from Salamma to Gowramma.

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Defendant No.4 – Muniswamy Naidu and defendant No.5 – Pappaiah Naidu are the sons of Pitchaka Venkataramaiah who is the first brother of Pitchaka Venkatappa. It is stated that after the death of Salamma and father of first defendant No.1Gowramma, defendant Nos.4 and 5 started interfering and giving problem to first defendant. First defendant wanted to sell the property and it was done so, under the sale agreement dated 04.10.1976 under which the properties including the schedule properties were sold to the plaintiff.

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9. Defendant Nos.1, 2 and 3 are Gowramma

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and her two sons namely, Honorappa and B.M.Gopala. They executed the sale deed in favour of plaintiff for Rs.2,500/- on 24.02.1979. Meanwhile, defendant Nos.4 and 5 – Muniswamy Naidu and Pappaiah Naidu, the sons of Pitchaka Venkataramaiah, who is the brother of father of defendant No.1 and they in the capacity of plaintiffs filed a original suit in O.S.No.328/1983 against defendant No.1 – Gowramma.

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The suit was filed to declare that gift deed stated to have been executed by Salamma in favour of Gowramma on 30.01.1951 as not binding on the plaintiffs. The defendant No.1 – Gowramma in that case consented for a decree in favour of the plaintiffs. Meanwhile, there was one more development the purchaser from Gowramma made an application under Order 1 Rule 10 of CPC, before the trial judge seeking

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permission to come on record and to face the pleadings. That application came to be dismissed. The present suit is filed by Venkataramappa S/o. Ramappa now dead and represented by LRs a). Chennamma, b) Munemma, C) Ramachandra d) Srinivas.

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Now, facts of this particular case is that the plaintiff claims that he is the purchaser of schedule property from Gowramma-defendant No.1 and her children under the registered sale deed dated 24.02.1979 and he is in possession and enjoyment of the schedule property.

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There is an active collusion between defendant No.1 – Gowramma, defendant No.4 Muniswamy Naidu and defendant No.5-Pappaiah Naidu and thus, he makes a claim against the defendants and the main grievance is that the defendants conspired together and made stage management

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wherein, Pappaiah Naidu, Muniswamy Naidu and Gowramma formulated a scheme.

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Incidentally, Gowramma consents for a decree in O.S.No.328/1983, wherein, she

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unequivocally concedes that the registered gift deed dated 30.01.1951 stated to have been executed by her mother – Salamma in favour of Gowramma was not binding and the schedule property did not belong to Gowramma as stated, it is quite but natural, the plaintiff in this case cannot get right in it.

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The defendants entered appearance and

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denied the plaint averments and contended that Salamma never had any right over the schedule property nor Gowramma and there was no gift deed in respect of Sy.No.41/3 and said property did not fall to the share of Pitchaka Venkatappa. Further the gift

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deed was obtained fraudulently by coercive process by Gowramma. However, it was declared as null and void. It is none other than the very donee – Gowramma accepted for cancellation.

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With this pleadings, the learned trial judge

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has framed the following issues:

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“1. Whether the plaintiff is the rightful owner of the suit schedule property and further proves that they are in possession over the same?

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2. Whether the defendants prove that they are the owners of the suit schedule property as claimed in para No.8 of the written statement of defendant No.2, 4 and 5?

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3. Whether the defendants 2, 4 and 5 proves that they are in adverse possession as claimed in para No.9 of the written statement?

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4. Whether the plaintiff is entitled for the relief of permanent injunction?

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5. To what reliefs the plaintiff is entitled?

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6. What order or decree?

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Additional Issues framed on 30.1.98:-

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“1. Whether plaintiff proves that the decree passed in O.S.No.328/83

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is not binding upon him?

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2. Whether plaintiff proves the

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alleged interference?

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3. Whether the plaintiff is entitle for the relief of declaration as prayed?

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Additional issues framed on 19.2.1998:-

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1. Whether the court fees paid by the plaintiff and the value of the suit done by him is proper?

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2. Whether the sale deed executed in favour of the plaintiff is legal and enforceable one?

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3. Whether the suit is bad for challenging the decree passed in O.S.No.328/83?

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Addl. Issue framed on 15.7.99:-

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1. Whether the defendant proves that plaintiff is estopped from contendingthat suit lands belongs to him as contended in para No.9(d) of written statement?”

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The learned trial judge was accommodated

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with following oral and documentary evidence on behalf of plaintiffs and defendants:-

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PW.1 - Venkateshappa

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PW.2 - Venkatapathy Naidu

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PW.3 - Chikkavenkatappa

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PW.4 - Jangamaiah

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PW.5 - Ramachandra

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Ex.P1 - Sale deed Ex.P2 - Certified copy of O.S.No.328/83 Ex.P3 - R.T.C. Extract

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Ex.P4 - Certified copy of plaint in

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O.S.No.328/83

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Ex.P5 - Certified copy of orders in

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O.S.No.328/83

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Ex.P6 - Certified copy of order sheet in O.S.No.58/82

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Ex.P7 - Certified copy of gift deed Ex.P8 - Tax paid receipt Ex.P9 - Tax paid receipt.

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DW.1 - K.T.Venkatesh Naidu

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DW.2 - Chandrappa

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DW.3 - Gopalappa

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Ex.D1 - G.P.A. Exs.D2 to

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D5RTC extracts

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Exs.D7 &

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D8 - Tax paid receipts

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Ex.D9 - Mutation extract

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Ex.D10Stay order copy

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Ex.D11-Certified copy of orders in R.A.62/78-79

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Ex.D12-Certified copy of orders in R.A.62/78-79

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Ex.D13Certified copy of order sheet in O.S.No.232/72.

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Ex.D14Certified copy of plaint in

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O.S.No.232/72.

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Ex.D15Certified copy of written statement.

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Ex.D16Certified copy of issues.

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Ex.D17Certified copy of plaint in

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O.S.No.276/85

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Ex.D18Certified copy of sketch

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Ex.D19Certified copy of commissioner’s

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report.

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Ex.D20Certified copy of mahazar

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Ex.D21Certified copy of partition deed.

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Ex.D22Mutation Extract

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Ex.D23 & D24RTC extracts.

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Upon the conclusion of trial, the learned

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trial judge dismissed the suit and made the following observation :

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“The suit of the plaintiff is hereby dismissed with suit cost.

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It is hereby directed the plaintiff to pay the court fee on market value of the suit

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schedule property by obtaining certificate to that effect from the concerned authority in proof.

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It is further directed to pay the court fee disjunctively on the relief of permanent injunction as sought for, U/s 26(c) of Karnataka Suit Valuation and Court Fee Act.

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Draw the decree in the matter accordingly on receipt of the proof of market value of the suit schedule property issued by the concerned authority from the plaintiff on receipt of proper court fee as directed supra.”

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Upon the admission of the matter, this court framed the following substantial questions of law:

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“Whether the Lower Appellate Court was justified in reversing the judgment and decree of the trial Court despite the admission of PW2 to the effect that suit

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property had fallen to the share of defendants No.4 and 5 and when the 1^st defendant had no interest in the suit property?”

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I consider it necessary to frame the

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additional substantial question of law as under:

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“As to whether the donee of the property who sold the same to the third party of her gifted property can consent for canceling the gift deed which is her title deed?”

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The trial judge believes that execution of the

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sale deed as per Ex.P1 by defendant No.1 in favour of plaintiff is concerned, it has been contended by the plaintiff that by virtue of Ex.D1, the defendant Nos.1 to 3 have executed the sale deed in his favour. The

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learned trial judge further observes that on meticulous perusal of the very versions of PW.1 it is apparent that

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he has clearly stated that he does not know as to

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whether the vendor defendant No.1 had the possession of the suit schedule property with her prior to his purchase and also does not know whether any khatha was standing in the name of Salamma the alleged donor in favour of defendant No.1 and also he has no documents to show that defendant No.1 has paid the tax in respect of the suit schedule property. As per the Indian Evidence Act, the admission should be clear and unambiguous. The learned trial judge goes on mentioning different provisions and discussion is regarding reasons assigned by him on findings.

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The learned trial judge takes out a document of the defendants and gives his opinion that they are not binding. In the appeal preferred by Venkataramappa S/o. Ramappa since dead by LRs and the defendants are Gowramma, defendant No.2Honorappa, defendant No.3-B.M.Gopala, defendant

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No.4-Muniswamy Naidu and defendant No.5- Papaiah Naidu.

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Learned counsel Sri.Murali, for

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appellant/defendant Nos.4 and 5 would submit that at the first instance, the suit schedule property was the ancestral property. It was not disputed, partition was effected in the year 1969. He would further submit that the schedule property never fell to the share of Pitchaka Venkatappa, he was not the owner of the schedule property. When he himself is not the owner of the property, there was no occasion for Salamma to succeed to the property from the said Venkatappa and Salamma executing the gift deed to Gowramma - defendant No.1 does not arise, as she herself was titleless. Learned counsel would further submit that since the said gift deed that was executed by Salamma as per Ex.P7 is injurious to the interest of defendant Nos.4 and 5, they had filed a suit in

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O.S.No.328/1983. He would further submit that defendant Nos.1, 2 and 3 never had any right to execute the sale deed in favour of the present plaintiff. Being a ancestral property having inherited the same from ancestors, defendant Nos.4 and 5 are

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the owners in possession of the same.

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It is necessary to explain the basic facts at this stage itself that the original suit filed by the purchaser of the schedule property against the vendor who are defendant Nos.1 to 3 that came to be dismissed before the trial court and the suit decreed in the appellate court. Since common judgment was passed, they are taken up together for common judgment.

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Learned counsel Sri. Papireddy for plaintiffs submits that each and every act of the defendants is questionable. Basically defendant No.1 is the

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owner/donee sold the property to the plaintiff and all was well but she enters into conspiracy with defendant Nos.4 and 5 who are the children of Pitchaka Venkataramaiah, whereby a stage managed suit was filed and under which, the said Gowramma who is the vendor of the plaintiff had sold the property as she obtained the same by virtue of gift from her mother – Salamma and it is she who joins hands with the defendants and consents that the very gift deed made in her favour is null and void and insofar as defendant Nos.4 and 5 are concerned, they are the sons of Pitchaka Venkataramaiah, they got their share in the property and taking advantage of the situation that the property fell in the hands of a lady they tried to usurp that. Insofar as children of Gowramma is concerned, they sail with their mother.

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It was also submitted that it was not only illegal but unethical that after parting with the

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ownership of the property in favour of the plaintiff, she consents for giving up the same property to others. In the context and circumstances of the case, though it is a second appeal under Section 100 of CPC, few facts tell the conduct of the defendant No.1 that is prohibited in law. First of all, admitted facts would go to show that originally Pitchaka Ramappa was the owner of the property, he had three sons Pitchaka Venktaramaiah, Pitchaka Venkatappa and Pitchaka Muneppa. It is stated that plaintiff claim partition among three brothers of Pitchaka Venkatappa but the defendants strongly denied the fact of partition. It is in this connection, it is necessary to note the document - Ex.P1, the sale deed stated to have been executed by Gowramma in favour of Venkataramappa/plaintiff. Ex.P2 is the orders on application and other details of

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O.S.No.328/1983 under which Gowramma concedes

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to the right over the property that was not with her.

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Insofar as defendants are concerned they

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deny the conducting of partition by tooth and nail and contend that at no point of time partition took place. However document Ex.P-3 is the RTC extract pertaining to suit schedule wherein name of Gowramma is bracketed and Munishyam Naidu is mentioned and it is mentioned as “joint”.

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It is contention of defendants that

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Venkataramappa’s name never appeared in any of the records and he was not in possession of the schedule property in any manner of right or title. The conduct of the parties through their pleadings and representation make the following points amply clear:

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Partition among children of Papaiah i.e., Pitchaka Venkataramaiah, Pitchaka Venkatappa and Pitchaka Muneppa is admitted but it is stated that Venkatappa was not allotted any property which is apparently not believable.

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If second sale agreement was executed by Gowramma and her children in favour of plaintiff Venkataramappa thereafter it culminated in registered sale deed Ex.P-1 dated 24.02.1979 and that sale deed was not questioned by defendants 4 and 5 in a legally acceptable manner. On the other hand they filed a suit in O.S.No.328/83 for permanent injunction and to declare the gift deed as null and void and not binding on them. Defendant No.1 is none other than donee herself. Suit was decreed as per Ex.P-5. It is legally understandable that when a person acquires a title in any manner known to law insofar as the procedure is

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concerned through a registered gift deed and becomes owner of the property and sell it to plaintiff under the registered sale deed Ex.P-1. Defendants 4 and 5 filed a ready made suit against Gowramma and her children and Gowramma who has already sold the property comes and tells that she has no objection for decreeing the suit. This is nothing but collusion of the highest order. Improbability of the version of the defendants regarding titlelessness of Venkatappa is also stand exposed in the contents of the gift deed wherein not only schedule property but also other properties were gifted to Gowramma. Thus, the modus operandi of the defendant has been that there is no straight approach. They tried from all angles to put spanner in the wheel guarding the rights of Gowramma. Moreover out of the total properties, the defendants question only the schedule property and not other.

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One more aspect occurs perhaps

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defendant did not take note of it. Gowramma is admitted to be the daughter of Salamma. In case even when there was no right over the properties upon the death of her father Pitchke Venkatappa she gets undivided ½ share along with her mother. In this connection the contention of defendants is that no property was given to Venkatappa when the same was not given there is no question of inheritance either by Gowramma or Salamma. On the face of it is not acceptable for the very reason there is no document to show either partition was effected and Pichaka Venkataramaiah’s children were enjoying their share and incidentally O.S.No.328/83 is filed in the court of KGF against Gowramma.

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Plaintiffs forgotten to include all other

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properties it appears. Because according to them

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when other properties were also gifted along with schedule properties the plaintiffs in that suit i.e., defendants 4 and 5 are very much curious on the schedule property and do not touch on other properties.

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Similarly if any property is transferred and

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gift deed properties is to be challenged it is donee claiming under the donor here comes parallel branch seeking declaration of gift deed as void and to declare they are owners of the property. It can be understood in the rural side partition may not be written or registered. Very often the panchayat palupatti prevails

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under such circumstances when defendants 4 and 5 assert that no property was given to Venkatappa they failed to produce scrap of paper in that connection.

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Learned counsel for appellants vehemently

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argued that Gowramma or Salamma or persons claiming under her are totally outsiders to the schedule property regard being had to the fact blood relationship is admitted. Defendants 4 and 5 are none other than the children of Venkataramaiah. Thus, father of the defendants and husband of Salamma i.e., Pitchaka Venkatappa are brothers and new theory of exclusion of share in a partition that is not produced cannot be entertained.

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Gowramma had no locus standi to accept for cancellation of the gift deed dated 30.01.1951 after selling the subject property under registered sale deed dated 24.02.1979.

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I find the learned trial court erred seriously

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in assigning legally valid reasons on the documents,

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on the conduct and proceedings. Further should have also looked into the very suit of the defendants 4 and 5 against Gowramma in O.S.No.328/83. However in the circumstances the trial Judge has not applied legal principles in the way they should have been applied. The reason given is neither probable nor acceptable and Judgment and decree dated 20.09.2000 passed in O.S.No.198/85 is liable to the set aside and in my view learned appellate Judge in R.A.No.9/2001 has rightly set aside the Judgment and decree of the trial court.

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Substantial questions of law are answered accordingly.

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RSA No.739/2006 fails and is dismissed. RSA

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No.741/2006 by defendants 1 and 2 is dismissed. In

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the result suit of the plaintiffs in O.S.No.198/85 is decreed as prayed for.

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Sd/JUDGE

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HJ/SBN

Smt Gowramma W/O Late Muniswamy Naidu v. Sri Venkataramappa Dead by L.Rs Smt Channamma

Case brief

What is this about?

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Smt Gowramma W/O Late Muniswamy Naidu v. Sri Venkataramappa Dead by L.Rs Smt Channamma

Case brief

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What did the court decide?

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