Dismissed

Rathanchand Purohith H @ Ridmal Ram v. Sri R.C.Kodandarama Shetty

Karnataka HC23 Sept 2021RSA/1127/2020

Case brief

AI extract

What is this about?

This court dismissed the second appeal filed against trial and first appellate court judgments denying declaration and possession of properties. The court held the appeal lacked substantial questions of law as the founding settlement deed was invalid due to the widow's limited estate, invalidating the plaintiff's title.

What did the court decide?

Appeal dismissed; Interim application for temporary injunction disposed of.

Rathanchand Purohith H @ Ridmal Ram Vs Sri… — Succession and Inheritance | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 23^RD DAY OF SEPTEMBER 2021

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE H.P. SANDESH

¶6

REGULAR SECOND APPEAL NO.1127 OF 2020 (DEC)

¶7

BETWEEN:

¶8

RATHANCHAND PUROHITH H @ RIDMAL RAM, AGED ABOUT 71 YEARS, S/O LATE HARJIJI PUROHITH, D.NO. 1322, NEW NO L-68/3, K.R. HOSPITAL ROAD, LASHKAR MOHALLA, MYSURU-570001. ...APPELLANT

¶9

(BY SRI SRINIVAS.S.V., ADV. & SRI CHALAPATHY, ADV.)

¶10

AND:

¶11

SRI R. C. KODANDARAMA SHETTY SINCE DEAD BY HIS LRS

¶12

SMT. NAGARATHNAMMA W/O LATE R. C. KODANDARAMA SHETTY, AGED ABOUT 82 YEARS

¶13

SMT. PADMAVATHI W/O LATE R. C. KODANDARAMA SHETTY, AGED ABOUT 64 YEARS

¶14

SMT. YAMUNA D/O LATE R. C. KODANDARAMA SHETTY AGED ABOUT 53 YEARS

¶15

SMT. SARASWATHI

¶16

¶17

D/O LATE R. C. KODANDARAMA SHETTY AGED ABOUT 47 YEARS RESPONDENTS 1 TO 4 ARE RESIDENTS AT DOOR NO 1323, NEW NO L068, K.R. HOSPITAL ROAD, LASHKAR MOHALLA, MYSURU-570001.

¶18

SRI R.K. CHANDRAGUPTA S/O LATE R. C. KODANDARAMA SHETTY AGED ABOUT 70 YEARS

¶19

SRI. R. K. SOMASHEKARA S/O LATE R. C. KONDANDARAMA SHETTY AGED ABOUT 67 YEARS

¶20

RESPONDENTS 5 AND 6 ARE RESIDENTS AT DOOR NO.1323, NEW NO.L-68, K.R. HOSPITAL ROAD, LASHKAR MOHALLA, MYSURU - 570 001.

¶21

SRI P. R. RANGASWAMY SHETTY S/O LATE P. RAMASWAMY SHETTY AGED ABOUT 78 YEARS, NO.3003, 2^ND MAIN, V.V.MOHALLA, MYSURU - 570 002. SRI M.V.VENKATASWAMY SINCE DEAD BY HIS LRS

¶22

SMT. LALITHAMMA W/O LATE M. V. VENKATASWAMY AGED ABOUT 69 YEARS

¶23

SMT. SHANTHALA LAKSHMI D/O LATE M. V. VENKATASWAMY AGED ABOUT 47 YEARS

¶24

SRI V. BALAKRISHNA S/O LATE M. V. VENKATASWAMY AGED ABOUT 41 YEARS

¶25

SRI CHANCHALA LAKSHMI

¶26

¶27

D/O LATE M. V. VENKATASWAMY AGED ABOUT 46 YEARS 12. SMT. CHANDRAKALA D/O LATE M. V. VENKATASWAMY AGED ABOUT 46 YEARS RESPONDENTS 8 TO 12 ARE RESIDENTS AT DOOR NO 1488/1/L-9, 6TH CROSS, KOLADASANDI BEEDI, IRWIN ROAD, MYSURU-570 001. SRI K. R. NANJUNDA SHETTY SINCE DEAD BY HIS LRS 13. SRI K.N. PRASANNA KUMAR S/O LATE K. R. NANJUNDA SHETTY AGED ABOUT 62 YEARS 14. SRI K.N.GEETHA D/O LATE K. R. NANJUNDA SHETTY AGED ABOUT 57 YEARS 15. SRI K. N. BHANUPRAKASH S/O LATE K. R. NANJUNDA SHETTY AGED ABOUT 52 YEARS 16. SMT. VEDAVATHI D/O LATE K. R. NANJUNDA SHETTY AGED ABOUT 47 YEARS RESPONDENTS 13 TO 16 ARE RESIDENTS AT DOOR NO 426, 3RD FLOOR, 2ND CROSS, DODDAVAKKALAGERI, LASHKAR MOHALLA, MYSURU-570001. ... RESPONDENTS

¶28

(BY SRI SHIVARAMU.H.C., ADV. FOR R7)

¶29

THIS REGULAR SECOND APPEAL FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.02.2020 PASSED IN RA.NO. 341/2012 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE

¶30

¶31

APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.07.2012 PASSED IN O.S.NO.296/1997 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MYSORE.

¶32

THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶33

J U D G M E N T

¶34

This matter is listed for admission today. I heard

¶35

the arguments of counsel for the appellant and also the counsel for the respondents.

¶36

The factual matrix of the case is that, the appellant/plaintiff has filed a suit in O.S.No.296/1997 seeking the relief of declaration and the consequential relief of possession of plaint 'A', 'B' and 'C' schedule properties contending that these properties originally belonged to the ownership of one Smt.Siddalakshmamma, wife of late Rajagopala Krishna Setty. Smt.Siddalakshmamma executed a registered Settlement Deed dated 21.11.1940 in favour of one Krishnamma, who was her younger brother's wife and also Krishnamma's son by name Ramachandra Setty.

¶37

¶38

The said Smt.Siddalakshmamma died on 03.04.1966

¶39

issueless. Ramachandra Setty was in possession and enjoyment of the plaint 'A', 'B' and 'C' schedule properties along with Smt.Krishnamma. The above mentioned Krishnamma died on 09.09.1956. Ramachandra Setty died on 3.9.1978 leaving behind his wife Smt. Gowramma, his sons Sri. Harinatha Gupta, Sri. Maniraju, Sri. Prabhakar and a daughter Smt. Krishnakumari. After the death of Ramachandra Setty, his Legal representatives continued to enjoy the suit schedule properties as full owners. In pursuance of their legal right, they have leased the Shop Premises bearing Door No.566, L-48, morefully described in the plaint 'A' schedule property in favour of R.P.Hemantharaja Setty and they have also leased Door No.1322, L-68/3 in favour of the plaintiff, which includes the ground floor shop as well as first floor portion. Further they have allowed the deceased 1^st Defendant to be in possession of plaint 'B' schedule

¶40

¶41

property. The property, which is in possession of the plaintiff, is described as plaint 'C' schedule property. Thus, the legal representatives of Ramachandra Setty were collecting the rents from R.P.Hemantharaja Setty and also from the plaintiff. It is learnt that the deceased first defendant has inducted the sixth defendant to the possession of the ground floor portion of plaint 'B' schedule property (shop premises). Subsequently the legal representatives of Ramachandra Setty have sold the entire plaint 'A', 'B' and 'C' schedule properties in favour of the Plaintiff through a registered Settlement Deed dated 13.11.1991 for valuable consideration. Thus, the Plaintiff has become the full and absolute owner of the plaint 'A', 'B' and 'C' schedule properties. Based on the document of the year 1991, the plaintiff has sought for the relief of declaration and possession. In pursuance of the suits summons, defendant No.5 appeared through counsel. Defendant Nos.1, 5 and 6 reported dead and their legal representatives were

¶42

¶43

brought on record. The legal representatives of deceased defendant No.1 filed their written statement contending that suit of the plaintiff is not maintainable. It is contended that the suit is liable to be dismissed on the ground that plaintiff has played fraud on the court and also contended that the suit had been registered before the then II Additional First Munsiff, Mysore in O.S.No.1048/1992 on its file wherein hopelessly, inadequate valuation had been caused by the plaintiff. The defendants took serious objection to the said valuation presented to which Commissioner was appointed and he submitted his report. Thereafter the plaintiff filed a fresh valuation slip, which also was not accepted by these defendants. It is contended that without prejudice to the rights of these defendants with regard to the cause of action, valuation of market value, the plaintiff claimed withdrawal of the said suit to be represented before this Court with the help of a valuation afresh. In the same manner the plaint was

¶44

¶45

returned to the plaintiff. However the plaintiff by playing surreptitious tactics did not represent the said plaint. He made unilateral and arbitrary maintenance to the plaint by introducing one idea afresh which was called as item 'C' of the plaint schedule which was not to be found in the plaint schedule when he filed a suit before the court of Munsiff. The introduction of an item afresh that which was not there. Without seeking permission of the court to amend the plaint is not only irregular but also highly violated of the provisions enunciated under the Civil Procedure Code. On this count alone the plaint filed by the plaintiff is liable to be rejected in limine. The whole procedure adopted by the plaintiff amounts to abuse of the provisions of the court for which the plaintiff is liable for serious consequences.

¶46

It is further contended that plaintiff was to claim that he has not represented but he has presented a plaint afresh. The whole suit presented by the plaintiff

¶47

¶48

cannot be introduced, as the said suit is barred by the provisions mentioned under the Law of Limitation. It is also contended that when the matter was pending before the court of Munsiff as long back on 06.10.1996 the Commissioner visited the spot and he has submitted a report whereunder the present suit 'A' schedule property has been valued in the year 1992 as Rs.3,08,356/- whereas the plaintiff in the year 1997 has valued the said property at Rs.1,75,000/-. The same Commissioner has referred the valuation of schedule 'B' property in the year 1992 as Rs.90,970.74 while the plaintiff has mischievously undervalued it at Rs.25,000/-. The valuation of 'C' schedule property as mentioned by the plaintiff has been at Rs.1,00,000/which is far less than the actual market value of the said property. It is contended that the market value of the schedule 'C' property is more than five times the one mentioned by the plaintiff in the course of the plaint. It is contended that the plaintiff has not properly valued

¶49

¶50

the suit property and on that ground also the suit is liable to be dismissed. It is also the contention that the defendants have denied the very right of the plaintiff to have any item in and upon the said properties and also that on the count of valuation itself, the suit is liable to be rejected.

¶51

The defendants in their written statement took the contention that the plaintiff has mischievously included the 'C' schedule property and the very frame of the suit is bad. It is also contended that without prejudice to the contentions raised above, suit is barred for non-joinder of necessary parties. It is also contended that the defendants in their capacity as the owners of both items sold the item No.'A' of the plaint schedule to one P.Rangaswamy Setty and conferred all incidents relating to the said item in favour of the purchaser. Since the date of purchase, these defendants have no interest or right in and upon the

¶52

¶53

plaint 'A' schedule property. The sale referred to above has been brought to the notice of the plaintiff himself. Even in the presence of the said sale, the plaintiff has intentionally omitted to implead the purchaser. On the said count also, the suit is liable to be dismissed in limine. It is also contended that the plaintiff claiming that originally the suit schedule items belonged to Smt.Siddalakshmamma is false. Further it is claimed that Smt.Siddalakshmamma allegedly bequeathed the schedule items through the alleged deed dated 21.11.1940 in favour of one Krishnamma and her son Ramachandra Setty is incorrect and denied. Even otherwise without however conceding the same, the alleged Will is null and void and concocted, inoperative and not binding on the real owner. The alleged Will was not put into operation at any point of time without however conceding it. Smt.Siddalakshmamma had no right, capacity, status or frame of mind to execute the alleged Will. The alleged Will is a non-est in relation to

¶54

¶55

the rights of the real owner and as against the exercise of claim by the real owner. The claim that said Ramachandra Setty described in the plaint was in possession and enjoyment of the plaint schedule property is also denied. The other allegation that after the death of Ramachandra Setty, his legal representatives continued to enjoy the schedule property as full owners is also denied as false and question of legal representatives having possessed any right in relation to the schedule property is an illusion and surmise as Ramachandra Setty himself did not possess any right over the same. The defendants also contended that entire property bearing D.No.556, Lakshmamma-48, including the ground and first floor and also property bearing No.1322 belong to one Raja Chinnaiah Setty, the father of the first defendant and grand-father of defendants Nos.2 and 3. As the owner, the said Raja Chinnaiah Setty enjoyed the said items. Raja Chinnaiah Setty was assessed to the municipality.

¶56

¶57

Raja Chinnaiah Setty had exercised all the incidents attached to the right of ownership by which he created leases of the said items in favour of tenants. The said incidents have also been exercised by the mother of the first defendant. After their demise, the plaint schedule items along with the other portions came to be inherited by defendant Nos.1 to 3. The first defendant as Kartha of the family continued to exercise the rights mentioned above, in line with which he created leasehold of the schedule 'A' item in favour of one R.P.Hemanth Raja. Under the circumstances, these defendants have proved themselves to be the absolute and exclusive owners of the schedule items. The alleged lease said to have been created by the legal representatives of Ramachandra Setty is null and void and does not bind these defendants. In fact, the plaintiff was inducted as a tenant into the portion of the property, which was presently in his personal occupation by these defendants under their vested authority. Later the

¶58

¶59

plaintiff in collusion with the persons who were inimically disposed towards these defendants and disclaimed the status of the defendants. The plaintiff has indirectly conceded the status of these defendants and he had gone to the extent of filing a petition under Section 19 of the Karnataka Rent Control Act wherein the first defendant had been included as party as respondent. By such acquiescence, the plaintiff has conceded the right of these defendants and has waived the right to challenge the status of these defendants. As such, it is not open to the plaintiff to disclaim the rights of these defendants and the suit filed by the plaintiff is liable to be rejected in limine. The defendants reserve their right to proceed against the plaintiff in causing his eviction before proper forum. The claim of the plaintiff that he got the right in favour of the document of the year 1991 does not create any right in their favour and hence, prayed the court to dismiss the suit.

¶60

¶61

The trial court based on the pleadings framed

¶62

the issues whether the plaintiff proves that he is the absolute owner of the suit schedule property having purchased the same by registered Settlement Deed dated 13.11.1991 and also framed an issue that whether the plaintiff proves that the defendants came into possession of A-1 and B schedule properties as contended by him. On the other hand, based on the pleadings of the defendants, the trial court also framed an issue that whether the defendants prove that the suit of the plaintiff is not maintainable and the plaintiff is not entitled for the relief as sought and also framed an additional issue whether the suit is not maintainable as contended by the defendants.

¶63

The parties before the trial court in order to substantiate their contentions, the plaintiff examined himself as PW-1 and got marked documents Ex.P1 to P58. On the other hand, the defendants also examined

¶64

¶65

DWs-1 to 3 and got marked documents Exs.D1 to D97.

¶66

The trial court after considering both oral and documentary evidence, particularly relying upon the document at Ex.P2, the registered Settlement Deed dated 21.11.1940 comes to the conclusion that though Siddalakshmamma was having her limited right over the suit schedule properties in the year 1940, the very execution of Settlement Deed dated 21.11.1940 is nonest in the eye of law and she was not having any right to settle the property and when she was not having any absolute right, the trial court comes to the conclusion that in view of the very claim made by the plaintiff based on the title of Ex.P2 and subsequent documents, he cannot be declared as owner and the very title traced by the plaintiff itself is defective.

¶67

Being aggrieved by the judgment and decree of

¶68

the trial court, the plaintiff has filed an appeal in R.A.No.341/2012. The first appellate court also after considering both oral and documentary evidence framed

¶69

¶70

a point for consideration, whether the plaintiff has become the owner of suit schedule 'A' to 'C' properties by virtue of sale deed in his favour dated 13.11.1991 and also discussed with regard to the possession of 'A' to 'C' schedule properties and answered all the points in "Negative". In coming to the conclusion that the document Ex.P2, which has been relied upon by the plaintiff, does not create any right in favour of the vendors of the plaintiff, however, at paragraph-62 of the judgment discussed that, no doubt plaintiff's name is appearing in the municipal records but there are no records to show that the name of Smt.Siddalakshmamma or Smt.Krishnamma or her son Ramachandra Setty were entered in the revenue records. Admittedly, prior to sale deed of the plaintiff, the name of defendant No.1 was appearing in the revenue records and along with his children, defendant No.1 has sold plaint 'A' schedule property to defendant No.4 under a registered sale deed and based on the said

¶71

¶72

sale deed, khatha was entered in the name of defendant No.4. It is also observed by the first appellate court that the lease deeds and rent receipts produced on both sides show that in the earlier point of time, defendants have managed the suit properties whereas the rent receipts produced by the plaintiff show that he has also paid the rents in favour of Ramachandra Setty. However, other than the factual aspects, in this case, the plaintiff has failed to establish the point of law viz., the ownership over the suit properties based on a sale deed executed by the legal representatives of Ramachandra Setty on the basis of Settlement Deed. Moreover, the mutation entries made in favour of plaintiff cannot be considered as conclusive proof of title and it cannot be held that plaintiff is the owner of the suit properties.

¶73

No doubt, at paragraph-63, it is also observed

¶74

with regard to that none of the defendants have claimed

¶75

¶76

any relief with regard to suit schedule property by way of counter claim either as heirs under Sections 15 and 16 of the Hindu Succession Act or as reversioners under the then existing law and there are no issues to that effect. Therefore, the trial court ought to have restrained itself from giving findings on the title of defendants over the suit schedule properties since the defendants themselves have not put forth any counter claim. However, the conclusion recorded by the trial court to dismiss the suit is correct and it was justified in dismissing the suit of the plaintiff and also discussed with regard to possession of 'A, 'B' and 'C' schedule properties and comes to the conclusion that the trial court has not committed any error in dismissing the suit. Being aggrieved by the judgment and decree of the trial court as well as the first appellate court, the present appeal is filed before this court.

¶77

¶78

The counsel appearing for the appellant would

¶79

vehemently contend that the property originally belongs to one Raja Gopalakrishna Setty and he died in the year 1900 leaving behind his wife Smt.Siddalakshmamma as

¶80

his only legal heir. The counsel also does not dispute the fact that said Smt.Siddalakshmamma executed the Settlement Deed i.e., Ex.P2 dated 21.11.1940. Said Smt.Siddalakshmamma died on 03.04.1966. The counsel would vehemently contend that though she was having a limited estate at the time of execution of document Ex.P12 dated 21.11.1940 in view of Hindu Succession Act, 1956, she has become the absolute owner of the property. The said Settlement Deed is also executed in favour of brother's wife and her son and in turn, they have executed the sale deed in favour of the plaintiff in the year 1991. The said sale deed is marked as Ex.P40 i.e., dated 13.11.1991 and possession remained with them.

¶81

¶82

The counsel in support of his argument relied upon the judgment of the Hon'ble Supreme Court reported in the matter of Subbegowda (Dead) by LR. - vs- Thimmegowda (Dead) by LRs. reported in AIR 2004 SC 2428 and brought to the notice of this court paragraph-9 of the said judgment wherein the Apex Court has discussed with regard to that the conditional transfer or a settlement accompanied by conditions is not unknown to the law of real property. It is permissible in law to annex or encumber any grant or alienation with condition or limitation which will operate and the Court will give effect to it unless there is some provision of law which annuls or invalidates such condition, restrain or limitation.

¶83

Today, the counsel also relies upon the judgment in the matter of Kaliaperumal -vs- Rajagopal and Another reported in (2009) 4 SCC 193 and brought to the notice of this court paragraph-18 wherein the Apex

¶84

¶85

Court discussed that normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property.

¶86

The counsel also relied upon the judgment of Privy Council decided on 16.12.1918 in the matter of Rangasami Gounden -vsNachiappa Gounden reported in (1919) 36 MLJ 498 and brought to the notice of this court paragraph-19 wherein it is discussed that, no doubt there is another view which is not estoppel, but is expressed by one learned judge as ratification. It is scarcely that, though it might be hypercriticism to object to the use of the word. What it is

¶87

¶88

based on is this. An alienation by a widow is not a void contract, it is only voidable. Now, in all cases of voidable contracts there is a general equitable doctrine common to all systems, that he who has the right to complain must do so when the right of action is properly open to him and he knows the facts. If therefore a reversioner, after he became in titulo to reduce the estate to possession and knew of the alienation, did something which showed that he treated the alienation as good, he would lose his right of complaint.

¶89

With regard to the limitation aspect is concerned, the counsel has relied upon the judgment of the Apex Court in the case of Sopanrao and Another -vs- Syed Mehmood and Others reported in (2019) 7 SCC 76 wherein the Apex Court has discussed with regard to the main prayers made in the suit concerned clearly indicate that it is a suit not only for declaration but the

¶90

¶91

plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and therefore, the suit is within the limitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. In a suit filed for possession based on title the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. Article 65 deals with a suit for possession of immovable property or any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff.

¶92

¶93

The counsel for the appellant referring to the said judgment would vehemently contend that though both the courts have given a concurrent finding, there are substantial questions of law to frame, whether Siddalakshmamma became the lawful and absolute owner of the suit schedule properties in view of Section 14 of the Hindu Succession Act 1956, whether the document executed by Siddalakshmamma is void and inoperative and the said finding of the appellate court can be sustained in law, in view of the admitted fact that Siddalakshmamma died on 03.04.1966, whether the finding of the first appellate court that the appellant did not get any title to the suit schedule property since Siddalakshmamma did not execute any document in his favour after 1956, whether the suit is barred by limitation, whether the finding of the trial court and also the first appellate court that the suit is not maintainable since the sale deed dated 14.12.1990 is not challenged in the eye of law.

¶94

¶95

The counsel would also vehemently contend that

¶96

even assuming that the document of the year 1940 is not a valid document and the same does not create any right and it is voidable in nature and also in support of his contentions he relied upon the above decisions and further submitted that this court can frame substantial questions of law invoking Section 43 of the Transfer of Property Act with regard to feeding of title and hence, it is a fit case for admission.

¶97

Per contra, learned counsel appearing for

¶98

respondent No.7 - defendant No.4 would contend that first of all Siddalakshmamma was not having any right to execute the Settlement Deed dated 21.11.1940. Even the said document is executed in favour of her brother's

¶99

wife and also her son without having any right. The same will not create any right in their favour. When the said document is non-est in the eye of law, the same does not confer any right in favour of the settlees and

¶100

¶101

also the settlees cannot execute any document in favour of the plaintiff and both the courts while considering both oral and documentary evidence have rightly come to the conclusion that based on the defective title of the vendors of the plaintiff, the same will not confer any right in favour of the plaintiff and the plaintiff is not entitled for the relief of declaration and further, both the courts have given a finding based on both oral and documentary evidence and the conclusion arrived at by the trial court as well as the appellate court does not require any interference. There are no grounds to invoke Section 100 of the Code of Civil Procedure to frame any substantial question of law admitting the matter and both the courts have considered both question of fact and question of law and when such being the case, it is not a fit case to exercise powers under Section 100 of the CPC.

¶102

¶103

The counsel in support of his arguments brought

¶104

to the notice of this court that the trial court, particularly in paragraph-24 of the judgment discussed with regard to Ex.P2 and also taken note of the fact that the property was standing in the name of Kodandarama Setty i.e., the first defendant and also all other documents including the Assessment Register extract as per Ex.D2 and Demand Register extract from 1935 to 1992 were standing in the name of the Defendant. The property was sold in the year 1991 in favour of defendant No.4 and till the sale of the property, all the revenue records were standing in the name of the first defendant.

¶105

The counsel has also brought to the notice of this court that the reasoning given by the trial court in paragraph-25 wherein the trial court also discussed with regard to Raja Chinnaiah Setty was having two sons i.e., Ashwatha Narayana Setty and Kodanda Rama

¶106

¶107

Setty. Ashwatha Narayana Setty died in the year 1930 and his wife Savithramma died in the year 1975 and both were not having any male issue. The wife of Ashwatha Narayana Setty was also not having any right over the suit schedule property similar to that of Smt.Siddalakshmamma, who died in the year 1966 and her husband died prior to 1900. Hence, Kodanda Rama Setty who is defendant No.1 is the sole surviving coparcener of his family and he acquired the suit schedule properties as the sole surviving co-parcener.

¶108

The counsel also relied upon paragraph-26 wherein an observation is made that in view of agreement between Kodanda Rama Setty and wife of Ashwatha Narayana Setty, an amount of Rs.740/- was given as maintenance to Savithramma (wife of Ashwatha Narayana Setty). She has also released all her right with respect to the suit schedule properties in favour of Kodanda Rama Setty. The trial court taken note of the

¶109

¶110

material available on record and comes to the conclusion that the first defendant has become the surviving co-parcener of the family of Raja Chinnaiah Setty.

¶111

The counsel also brought to the notice of this court paragraph-27 of the judgment wherein the trial court had discussed with regard to Hindu Succession Act, 1956 and observed that as on the date of commencement of the Hindu Succession Act, 1956, Siddalakshmamma was not having any right over the suit schedule properties. In view of the fact that her husband Raja Gopalakrishna Setty died prior to 1900 and Raja Chinnaiah Setty has acquired the suit schedule properties as the absolute owner as the sole co-parcener of the family. No property was given to Smt.Siddalakshmamma for her maintenance. Hence, the principle laid down in the judgment in the matter of

¶112

Arasappa Setty and Others -vs- Smt.Putamadamma

¶113

¶114

reported in ILR 2011 KAR 3073 relied upon by the counsel for the plaintiff before the trial court cannot be made applicable to the case on hand.

¶115

The counsel also brought to the notice of this court paragraph-28 of the judgment wherein the trial court also discussed with regard to the fact that the plaintiff had the knowledge of the sale deed executed in the year 1991 in favour of defendant No.4 and he has also admitted the same in the cross-examination and he kept quiet till 1997 and he should have challenged the sale deed but the same is not challenged and also taken note of the limitation aspect and in paragraph-28, the trial court also comes to the conclusion that as on the date of settling the property by Siddalakshmamma was not having any right over the suit schedule properties and the execution of document Ex.P2 does not create any title in favour of the settlees and the settlees also cannot base any title in favour of the plaintiff. The trial

¶116

¶117

court has also given reason while declining the relief of declaration and possession.

¶118

The counsel also brought to the notice of this court the reasoning given by the first appellate court in paragraph-63 wherein the first appellate court has discussed with regard to Sections 15 and 16 of the Hindu Succession Act, 1956 and the first appellate court though made an observation that no counter claim was made, but that observation is also erroneous since the defendants have claimed the ownership over the suit schedule properties as they are the legal representatives of Raja Chinnaiah Setty and the trial court has also given the said finding. However, the first appellate court though made such an observation in paragraph-63 comes to the right conclusion that the plaintiff has not derived any title in respect of the suit schedule properties since the vendors were not having any title to convey the title in favour of the plaintiff and

¶119

¶120

hence, the counsel has vehemently contended that there are no grounds to invoke Section 100 of the Code of Civil Procedure, to frame substantial question of law.

¶121

Having heard the counsel for the appellant

¶122

and also the counsel appearing for respondent No.7, it is not in dispute that the property belongs to the husband of Siddalakshmamma. The respective counsel also do not dispute that she was not having any right to execute the Settlement Deed in the year 1940. Since the said Siddalakshmamma was having a limited estate in the year 1940, she has executed the Settlement Deed in the year 1940 in favour of her brother's wife and her son. The question before this court is that, when the said Siddalakshmamma was not having any absolute right, she cannot convey any right in respect of the said property in favour of her relatives, as she has done in executing the Settlement Deed. Having considered the recitals of the document of the Settlement Deed of the

¶123

¶124

year 1940, the counsel for the appellant has also brought to the notice of this court the contents of the document regarding possession and conveying her interest i.e., after her death. It has to be noted that the document itself is non-est in the eye of law that she has no right in settling the property to settlies, the recitals made in the document will not confer any title or interest in favour of the settlees. It is also important to note that she died in the year 1966. No doubt, after coming into force of the Hindu Succession Act, the fact remains that, after 1956, she has not executed any document in favour of any of the persons. The plaintiff has also relied upon the document Ex.P.2, which is of the year 1940, but that document does not create any right and ultimately during the life time of Siddalakshmamma and subsequent to the Act of 1956, not executed any document, it will not confer any title in favour of the settlees. When the document itself nonest in the eye of law, no doubt, the settlees have

¶125

¶126

executed the document in favour of the plaintiff and when the settlees are not having any right to transfer the property in favour of the plaintiff, the plaintiff cannot claim any title based on the document. Both the courts have taken note of question of fact and question of law and comes to the conclusion that there is a defective title and that defective title will not confer any right in favour of the plaintiff. The trial court has also taken note of the documents that were standing in the name of the first defendant even from 1935 onwards and also the property was sold in the year 1991 in favour of defendant No.4. The trial court has also taken note that the sale deed made in favour of the Defendant No.4 was not challenged by the plaintiff. Instead of document of Settlement Deed dated 13.11.1991 was made in favour of plaintiff for valuable consideration. It is also important to note that when the plaintiff is seeking relief of declaration and possession, first he has to prove the very title, that he has got the required title

¶127

¶128

in respect of the suit schedule property. The plaintiff also cannot depend on the weakness of the defendants and the plaintiff has to stand on his own legs. But in the case on hand, when the plaintiff has mainly relied upon the basing document Ex.P2 dated 21.11.1940 and when that document itself is non-est in the eye of law, the trial court and also the first appellate court have rightly come to the conclusion that the plaintiff is not entitled for the relief of declaration and also other consequential relief of possession based on the defective title. When the title has not been proved, the main contention of the counsel appearing for the appellant that even though the document Ex.P2 is executed and he was not having any absolute right to execute the document, but that document cannot become a void document and it is only a voidable document, cannot be accepted. But in order to make a voidable document as a valid document during the life time of

¶129

¶130

Siddalakshmamma, no document was executed in favour of the settlees by the said Siddalakshmamma.

¶131

The counsel also vehemently contended that

¶132

the court can invoke and frame substantial questions of law under Section 43 of the Transfer of Property Act. If the parties not having title at the time of executing the document and subsequently became the owner, then the court can invoke Section 43 of the Transfer of Property Act. As already pointed out that the very document E.P2 dated 21.11.1940 in the eye of law is a non-est document and no document has been executed subsequent to 1956 by Siddalakshmamma during her life-time and hence, the question of feeding title in favour of the plaintiff invoking Section 43 of the Transfer of Property Act also does not arise and hence, I find that the contention that the said document is not a void document and it creates right in favour of the plaintiff cannot be accepted. Both the courts have come

¶133

¶134

to the conclusion that the defective title cannot confer any title in favour of the plaintiff and both the courts have given a concurrent finding considering both the question of fact and question of law. Hence, I do not find any substantial question of law to frame by invoking Section 100 of the Code of Civil Procedure. Hence, I do not find any force in the contentions of the counsel appearing for the appellant to frame substantial question of law and to admit the matter.

¶135

In view of the discussion made above, I pass

¶136

the following order:

¶137

The appeal is dismissed.

¶138

In view of dismissal of the appeal, I.A.No.1/2021 filed for temporary injunction does not survive for consideration. Hence, it stands disposed of.

¶139

Sd/JUDGE

¶140

KNM/-

Rathanchand Purohith H @ Ridmal Ram v. Sri R.C.Kodandarama Shetty

Case brief

What is this about?

What did the court decide?

Rathanchand Purohith H @ Ridmal Ram v. Sri R.C.Kodandarama Shetty

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

N Srinivasa Vs N. Narasimha

Sri Uday Kumar Vs B Venkataramanaiah

Sri B Venkataramanaiah Vs Sri Uday Kumar

Sri B.N. Muniraju Vs Sri Kogilu Anjinappa

Sri Bathyappa Vs Smt. Papamma

K Rangappa Vs Lakkamma