Dismissed

Mahadevaswamy v. Veena B

Karnataka HC12 Apr 2021RSA/1554/2018

Case brief

AI extract

What is this about?

The Second Appellate Court dismissed the appeal filed by a purchaser challenging the First Appellate Court's order granting the daughter an equal share in joint family properties. The Court upheld the findings that the sale did not meet legal necessity as the purchaser knew of the plaintiff's interest but failed to produce her.

What did the court decide?

Affirmed the First Appellate Court's order granting the plaintiff a 1/4th share in all suit properties and dismissing the suit against Items 2 and 3 pending confirmation by Final Decree Court.

Mahadevaswamy Vs Veena B — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF APRIL 2021

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY REGULAR SECOND APPEAL NO.1554 OF 2018 (PAR)

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BETWEEN:

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MAHADEVASWAMY S/O MAHADEVAPPA, AGED ABOUT 50 YEARS, RESIDING AT BIDARAKOTE VILLAGE, MADDURU TALUK, MANDYA DISTRICT-571428.

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…APPELLANT

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(BY SRI. M.N. UMASHANKAR, ADVOCATE) AND:

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VEENA B. W/O. KUMARA SWAMY AND D/O BASAPPA N. AGED ABOUT 34 YEARS, RESIDING AT M.I.G.NO.40, 1^ST STAGE, KARASAVADI ROAD, KUVEMPUNAGARA, MANDYA CITY-571401.

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SRI. BASAPPA N. S/O LATE NANJUNDASHETTY, SINCE DEAD BY LR’s,

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SMT. MAHADEVAMMA, W/O LATE BASAPPA N. AGED ABOUT 68 YEARS, RESIDING AT M.I.G.NO.40, 1^ST STAGE, KARASAVADI ROAD,

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KUVEMPUNAGARA, MANDYA CITY-571401.

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SRI. B. MANOHAR S/O SRI. BASAPPA N, AGED ABOUT 42 YEARS

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SRI. B.ANIL KUMAR S/O SRI. BASAPPA N, AGED ABOUT 39 YEARS

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THE RESPONDENT NO.3 AND 4 ARE RESIDING AT BIDARAKOTE VILLAGE, MADDURU TALUK MANDYA DISTRICT-571428

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…RESPONDENTS

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(BY SRI. P. NATARAJU, ADVOCATE FOR CAVEATOR RESPONDENT NO.1)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 10.04.2018 PASSED IN R.A.NO.28/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADDUR, ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 23.06.2011 PASSED IN O.S.NO.101/2008 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, MADDUR.

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

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JUDGMENT

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This appeal is filed by defendant No.4 challenging

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the judgment and decree of the First Appellate Court in R.A. No.28/2011, by which the First Appellate Court modified the judgment and decree of the Trial Court and

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granted 1/4^th share in all the suit properties. The defendant No.4 / appellant herein is a purchaser of suit Items No.2 and 3.

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The plaint discloses that Nanjunda shetty had two sons, Vishakantappa and N. Basappa, who divided their ancestral joint family properties. At the said partition, the suit properties fell to the share of N. Basappa-defendant No.1. The plaintiff, defendants No.2 and 3 are the children of defendant No.1, who was the karta of the joint family and all the revenue records relating to the suit properties stood in the name of defendant No.1. The defendant No.1 fell prey to bad habits and in collusion with defendants No.2 and 3 created an encumbrance in respect of Items No.2 and 3 in favour of defendant No.4, though there was no corresponding legal necessity. The plaintiff claimed that she was entitled to an equal share in the suit properties and therefore the conveyance in favour of defendant No.4 in respect of suit items No.2 and 3 did not bind her right, title and interest.

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Therefore, she sought for partition and separate possession of her share in the suit properties.

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The defendants No.1 to 3 did not contest the suit, though they appeared through counsel. The defendant No.4 contested the suit and claimed that defendants No.1 to 3 had sold the suit items No.2 and 3 to meet their legal necessities in terms of a deed of absolute sale dated 12.03.2007. He claimed that he was in possession of above said properties and that his name was entered in the revenue records. He claimed that defendants No.1 to 3 had set up the plaintiff to file the present suit. He further claimed that defendant No.1 , as the karta of the family had unfettered right to dispose of the joint family properties for legal necessities. He also contended that if the Court felt that plaintiff was entitled to her share, then to allot the suit Items No.2 and 3 to the share of defendants No.1 to 3. He also claims that the plaintiff had not included all the properties in the suit and

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therefore the suit for partial partition was not

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maintainable.

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Based on these rival contentions, the Trial

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Court framed the following issues :

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i. Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants No.1 to 3?

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ii. Whether the plaintiff proves that she is entitled for partition and separate possession of her 1/4^th share over the suit schedule properties by metes and bounds?

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iii. Whether the plaintiff is entitled to the relief as sought for?

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iv. What decree or order?

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Additional Issue dated 23.01.2010

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Whether the defendant No.4 proves that he is a bonafide purchaser and suit items No.2 and 3 to be allotted to the share of the defendants No.1 to 3 and in turn to defendant No.4?

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Additional Issue dated 15.04.2011

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Whether the suit for partial partition is maintainable?

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The plaintiff was examined as P.W.1 and she marked documents as Exs.P-1 to P-4. She also examined another witness P.W.2. The defendant No.4 was examined as D.W.1, who marked documents as Exs.D-1 to D-8 and adduced evidence of D.Ws.2 to 5.

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Based on the oral and documentary evidence, the Trial Court held that the suit properties were the ancestral joint family properties of the plaintiff and defendants No.1 to 3. Insofar as the question as to whether defendant No.4 was a bona fide purchaser of suit Item No.2 and 3, the Trial Court held that plaintiff and defendants No.1 to 3 were residing in the same house. It also held based on Ex.D-4 – the wedding card of the plaintiff as well as the recitals in the sale deed at Ex.D-1 that the sale of suit items No.2 and 3 was to meet the marriage expenses of the plaintiff, which was a legal necessity. Hence, the Trial Court decreed the suit of the plaintiff in respect of items No.1 and 4 and dismissed the suit in respect of items No.2 and 3.

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Being aggrieved by the dismissal of the suit as

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against suit Items No. 2 and 3, the plaintiff filed R.A. No.28/2011. The First Appellate Court secured the records of Trial Court, heard the learned counsel for the parties and framed the following points for consideration :

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i. Whether the judgment and decree passed by the learned Trial Judge in O.S. No.101/2008 dated 23.06.2011 on the file of the learned Prl. Civil Judge (Jr.Dn.), Maddur is not in accordance with law?

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ii. Whether the Trial Court has erred in not decreeing the suit of the plaintiff by awarding the share of the plaintiff in all the suit properties?

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iii. If so, what order?

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The First Appellate Court held that the suit properties belonged to the joint family comprised of plaintiff and defendants No.1 to 3. It rejected the contention of defendant No.4 that the plaintiff had to prove that suit Items No.2 and 3 were sold by defendants No.1 to 3 for an immoral purpose. The First Appellate Court relied upon the judgment of the Apex Court in

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RADHAKRISHNA DAS v. KALURAM reported in AIR 1967 SC 574 and held that when an alienation by the karta is challenged by the other members of the family, then the alienee has to prove the legal necessity for the transaction. The First Appellate Court found from Ex.D-1 that the sale of suit Items No.2 and 3 was for the purpose of meeting the household expenses and to clear other hand loans. The First Appellate Court found that defendant No.1 had retired from service and was drawing pension. It also found from the evidence of D.W.1 that family of defendant No.1 had sufficient income from other sources. The First Appellate Court also found that the defendant No.4 had notice and knowledge that the plaintiff was the daughter of defendant No.1. It also noticed the evidence of D.W.1 that the defendant No.1 had undertaken to keep the plaintiff present on the date of execution of Ex.D-1. It also held that if the suit items No.2 and 3 were sold to meet the marriage expenses of the plaintiff, then the defendant No.4 knew that the plaintiff too had undivided right, title and interest in the suit properties. Therefore,

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having regard to the proviso under Section 6 of the Hindu Succession (Amendment) Act, 2005, the First Appellate Court held that the plaintiff is entitled to an equal share in all the suit properties.

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Being aggrieved by the aforesaid finding of the First Appellate Court, the defendant No.4 has filed this regular second appeal.

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The learned counsel for defendant No.4 contended that the marriage of the plaintiff was the responsibility of the family, and therefore, to meet the expenses of the marriage of the plaintiff the suit Items No.2 and 3 were sold. He contended that defendants No.1 to 3 did not contest the suit, and this therefore, indicated that plaintiff and defendants No.1 to 3 had conspired and colluded to challenge the alienation that was done to meet the legal necessities of the family. He also contended that the First Appellate Court erroneously held that the suit for partition was maintainable though the entire joint family properties were not included.

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I have given my anxious consideration to the arguments canvassed by the learned counsel for the appellant.

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The law insofar as the right of the karta to alienate joint family ancestral properties is well settled. He, as a Manager of the joint family holds its properties in trust for others and can alienate the family properties either for lawful purpose to meet the legal necessity or for enhancing the value of the properties of the joint family. Thus, when he along with a few members of the family alienate the suit properties, such alienation would bind the non-party members of the family, only if such sale is to meet a legal necessity and not otherwise. Therefore, burden is always cast upon an alienee to prove the legal necessity that compelled the sale of joint family properties. In the case on hand, the plaintiff alleged that defendant No.1 had fallen prey to bad habits. She also alleged that though the family possessed sufficient income, yet the defendants, to deprive the share of the plaintiff, had

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illegally transferred it to defendant No.4. Therefore, she contended that in view of Hindu Succession (Amendment ) Act, 2005, the alienation in favour of defendant No.4 did not bind her right, title and interest in the suit properties.

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If the defendant No.4 knew that the plaintiff was the daughter of defendant No.1 and that the suit items no.2 and 3 were sold to meet the marriage expenses of plaintiff, then, it was incumbent upon him to secure the presence of the plaintiff in the execution of deed of absolute sale. It was equally incumbent upon him to mention in the said sale deed that suit Items No.2 and 3 were sold to meet the marriage expenses of plaintiff. Contrary, it is claimed in Ex-D1 that suit items 2 and 3 were sold to meet the household expenses and to clear land loans. Defendant No.4, who was examined as D.W.1 deposed that Defendant No.1 had promised to secure the plaintiff at the time of the registration of sale deed. Therefore, defendant No.4 was fully aware of the undivided right, title and interest of the plaintiff in the suit schedule

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property. The evidence of D.W.1 does not disclose whether he made any enquiries whether there was a real need of sale of suit Items No.1 to 3 for the marriage expenses of plaintiff. Except claiming that suit Items No.2 and 3 were sold to meet the marriage expenses, the defendant No.4 did not prove the same. Therefore, First Appellate Court was right in decreeing the suit in its entirety and declaring that plaintiff is entitled to 1/4^th share in the suit schedule properties. In that view of the matter, no interference is warranted in the judgment of the First Appellate Court , and therefore, this appeal fails and is dismissed.

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However, the defendant No.4 is at liberty to request the Final Decree Court to allot suit Items No.2 and 3 to the share of defendants No.1 to 3 and compensate the share of the plaintiff in suit items No.1 and 4. The Final decree court may take into account the nature of soil of suit items No.2 and 3 and Items No.1 and 4 as well as the amenities / easements provided to suit Items No.2, 3 and Items No.1 and 4 consider the feasibility of allotting the

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suit items no.2 and 3 to the share of defendants No.1 to 3. The defendant No.4 is also at liberty to include all other properties of the plaintiff, defendants No.1 to 3 in the Final Decree Proceedings.

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Sd/JUDGE

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hnm

Mahadevaswamy v. Veena B

Case brief

What is this about?

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Mahadevaswamy v. Veena B

Case brief

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