Jointly purchased land was claimed exclusively under an unregistered agreement. The court dismissed both appeals, sustaining rejection of the declaration and injunction claim and the award of a half share in partition to the other purchaser's legal representatives.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF AUGUST, 2022
BEFORE
THE HON’BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.1916/2005(DEC/INJ) C/W
R.F.A.No.1915/2005(PAR)
IN R.F.A.NO.1916/2005
BETWEEN
SRI K N SANANDA GANESH S/O LATE K.T.NAGAPPA REDDY AGED ABOUT 48 YEARS R/AT DODDAKANNAHALLI CARMELARAM POST VARTHUR HOBLI BANGALORE EAST TALUK EARLIER BANGALORE SOUTH TALUK BANGALORE URBAN DISTRICT
...APPELLANT
(BY SRI M.S. VARADHARAJAN, ADVOCATE)
AND :
SMT LAKSHMAMMA W/O LATE K.T.NARAYANA REDDY AGED ABOUT 62 YEARS R/O DODDAKANNAHALLI CARMELARAM POST VARTHUR HOBLI BANGALORE SOUTH TALUK Now BANGALORE EAST TALUK
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BANGALORE URBAN DISTRICT
...RESPONDENT
(BY SRI K.P.BHUVAN, ADVOCATE FOR M/S.PURNA LAW ASSTS.,)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DT.9.9.2005 PASSED IN O.S.NO.174/1995 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN), BANGALORE RURAL DISTRTIC, BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.
IN R.F.A.NO.1915/2005
BETWEEN
S/O LATE K.T.NAGAPPA REDDY AGED ABOUT 46 YEARS
ALL ARE RESIDING AT DODDAKANNAHALLI CARMELARAM POST VARTHUR HOBLI BANGALORE EAST TALUK
...APPELLANTS
(BY SRI M.R.RAJGOPAL, SR. COUNSEL FOR SRI M.RAMA MOHAN AND SRI C.B.PRAKASH, ADVOCATES)
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AND
ALL ARE RESIDING AT DODDAKANNAHALLI VARTHUR HOBALI-560 087 BANGALORE EAST TALUK
...RESPONDENTS
(BY SRI K.P.BHUVAN, ADVOCATE FOR R1 AND R2; NOTICE TO R3 TO R5 SERVED, UNREPRESENTED)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND DECREE DT.9.9.2005 PASSED IN O.S.NO.215/95 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN), BANGALORE RURAL DIST., BANGALORE, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
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THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are arising out of a common judgment passed by the II Additional Civil Judge (Sr.Dvn), Bengaluru Rural District, Bengaluru, pertaining to O.S.Nos.174/1995 and 215/1995.
One Narayana Reddy and Nagappa Reddy purchased property in Sy.No.124 of Dodda Kannalli village, Varthur Hobli, Bengaluru South Taluk, Bengaluru District from its erstwhile owner Sri Papanna Chari S/o Thomasappa.
East by : Kaka Thimmaiah, Annayya Reddy's Lands and Gramathana; West by : Ramaia H, Nyathappa,
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Thomsachar's lands;
North by : Gramathana and
South by : Road
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6. While Laskhmamma and Rathna denied the
plaint averments in O.S.No.174/1995, the wife and children of Nagappa Reddy denied the plaint averments in O.S.No.215/1995 maintaining that the suit schedule property in O.S.No.215/1995 is the absolute property of Nagappa Reddy by virtue of partition that has taken place in the year 1960 and subsequent revenue entries being transferred on to the names of wife and children of Nagappa Reddy and thus sought for dismissal of the suit.
2. Whether the defendants No.1 to 4 further prove that the suit property was given to the share of K.T. Nagappa Reddy at the partition of the year 1960?
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3. Whether the defendants No.1 to 4 prove that the husband of plaintiff No.1 has represented that the suit property should be enjoyed by K.T. Nagappa Reddy exclusively for himself and thereby the husband of 1st plaintiff lost his right over the suit property?
4. Whether the plaintiffs prove that they are entitled to half share in the suit property?
5. Whether the plaintiffs are entitled to decree prayed for?
6. What decree or order?"
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He reiterated the contents of the plaint in his examination in chief and in his further examination, he has stated that since his father and his uncle (Nagappa Reddy and Narayana Reddy) had purchased the property jointly, however his father was alone enjoyed the property in exclusion to his uncle. He has further stated that his uncle was a contractor and his father possessed properties other than the suit property. It is also stated by him, that earlier to 1953 there was a oral partition between his father and uncle. In the year 1985 Narayana Reddy died and thereafter words he has given application to the revenue authorities and got the revenue entries transferred to his name.
defendant who are the plaintiffs in O.S.No.215/1995 it is elicited that Lakshmamma is his aunt i.e., Narayana Reddy's wife. It is further elicited that Sy.No.124 measures 30 ½ guntas. He admits that, it was purchased
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by his father and his uncle in the year 1953 jointly. He admits that both Narayana Reddy and Nagappa Reddy are no more. He admits that when they were alive, the property was in joint possession of Narayana Reddy and Nagappa Reddy. He admits the pendency of O.S.No.215/1995. He denies that Narayanareddy has not sold the property in favour of his father. He has answered that in the year 1995, Narayana Reddy has taken money and executed a document. He denies that Ex.P.4 is not the document where under, Narayana Reddy has sold his half share of property and the signature is found in Ex.P.4 is not the signature of Narayana Reddy. He also admits that except Ex.P.4 there is no other document to show that Narayana Reddy has sold his half share in favour of Nagappa Reddy. In his further examination-in-chief he has answered that Narayana Reddy after executing Ex.P.4, he had to execute a registered sale deed. But, before execution of such document, he died.
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Since Narayana Reddy wanted finance for his contract work, he used to borrow amount from known persons and when he was in dire need of finance, he sold his portion of land through Ex.P.4. In his cross-examination, it is elicited that the partition between plaintiff and defendants must have taken place 25 years earlier to his deposition, but he has not seen any documents. He has come to know that Narayana Reddy has sold the property in favour of Nagappa Reddy about 10-15 years earlier. He has also answered that revenue records are standing in the name of plaintiff.
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14. On behalf of defendant, Sri S. Venkataswamy
Reddy is examined as D.W.1. He deposed that he is the power of attorney holder of Lakshmamma and he is acquainted with the facts of the case. By filing an affidavit, he reiterated the contents of the written statement in lieu of his examination in chief.
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property. He has also stated that there are documents to show that there was a partition between Narayana Reddy and Nagappa Reddy in respect of ancestral properties. It is elicited that Narayana Reddy was doing Civil Contract work during his life time. He admits that he not given any document to show that Narayana Reddy was cultivating the suit properties. However, he has further answered that in the suit property southern half portion was being cultivated by Nagappa Reddy and Northern half portion was cultivated by Narayana Reddy. He has answered that in Ex.P.6 at Ex.P.6(a) the signature of Narayana Reddy is found. However, he denied the suggestion that Narayana Reddy has sold half portion of his land to Nagappa Reddy. He denied the suggestion that Narayana Reddy never cultivated his half portion of the land. He denied the suggestion that Ex.D.3 is executed by Narayana Reddy in favour of Nagappa Reddy.
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plaintiff is examined as P.W.1. She has filed an affidavit in lieu of her examination in chief reiterating the contents of the plaint. She identified the certified copy of the sale deed between Papanna Chari, Narayana Reddy and Nagappa Reddy at Ex.P.1. She has produced certified copy of the mutation register extract at Ex.P.2 and four RTC extracts at Exs.P.3 to P6. She has also marked land revenue receipts on her behalf, Encumbrance certificate pertaining to suit property at Ex.P.9. She also marked RTC extract pertaining to the suit property in the names of the vendors at Ex.P.12 and P.13.
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with her. It is further elicited that the suit property measuring 30 ½ guntas was purchased in the names of her husband and his brother Nagappa Reddy jointly and both of them died about 15 years back. It is further elicited that she has got son and daughter, but her son died about 9 years earlier. She has further answered that Narayana Reddy was indulged in agriculture and she has produced revenue records to substantiate the same. She has denied the suggestion that her husband was not doing agriculture work and he was doing contract work. She has denied the suggestion that in the year 1980 her husband received Rs.8000/- from Nagappa Reddy and gave consent to transfer the khatha in the name of Nagappa Reddy and
an agreement came to be entered. She further denied the suggestion that after the death of Nagappa Reddy, on the basis of the said document, sons of Nagappa Reddy got changed khatha in their names.
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K.N.Sananda Ganesh is examined as D.W.1. In his affidavit he has reiterated the contents of written statement and sought for dismissal of the suit. He has marked copy of the sale agreement at Ex.P.1 and sale deed of the year 1953 at Ex.D.2, mutation extract at Ex.D.3, certified copy of the RTC extract at Ex.D.4, certified copy of tax paid receipt at Ex.D.5, certified copy of the mutation at Ex.D.6, another RTC extract in respect of Sy.No.83/B at Ex.D.8 and certified copy of the sale deed dated 1995 at Ex.D.9.
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property half of the portion was standing in the name of plaintiff and half of the portion was standing in the name of defendant. He has answered that Narayana Reddy has executed an agreement of sale in favour of his father and the same is produced in the suit.
GROUNDS IN 1916/2005
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executed by the K.T. Nagappa Reddy and even the court has rejected to issue summons to the official witness to produce the alleged document.
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defendant she has not taken any steps to dispossess the plaintiff nor she filed any suit seeking declaration even her husband has not made any attempts to take possession in his life time, since he was aware that it has already sold in his brother's name Sri K.T.Nagappa Reddy in the year 1980 itself.
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the court comes to the conclusion that the plaintiff failed to prove that he is in possession and enjoyment.
GROUNDS IN 1915/2005
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of sale agreement executed by K. T.Narayana Reddy in favour of K.T. Nagappa Reddy and the Revenue officials after enquiry in the village and after issuing of notice Rule 21 of K.L.R.Act, the same land was mutated in the name of 1st appellant without issuing any notice, the same official incorporated the name of the 1st Respondent in respect of 15-1/4 guntas in the same survey number.
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said property is not a joint schedule property for which she has admitted.
� The learned Trial Judge did not understand the facts and circumstances of the case under which the suits filed by both the parties are clubbed, and he has given much importance to the purchase made by the brothers jointly without deciding the possession and enjoyment. That apart the RTC produced by the 1st respondent clearly shows that her husband purchased 20 guntas other than the land purchased jointly i.e. 30-1/2 guntas in the same survey number for which the Revenue authorities the name of the 1st respondent's husband in RTC. However the documents produced by the 1st respondent does not disclose that the 30-1/2 guntas are in joint possession along with the brother of the 1st respondent's husband. Even the witness is unable to give the boundaries of the suit schedule property and also in respect of 15-1/4 guntas wherein she is claiming that her husband is in possession and enjoyment.
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24. In this regard, he drew the attention of this
Court in respect of Section 45 of the Transfer of property Act which reads as under:
"45. Joint transfer for consideration.— Where immoveable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property."
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"8. Under Section 45 of the Transfer of Property Act, 1882 where immovable property is transferred for consideration to two or more persons jointly makes them co-owners of the property transferred, their interest are in proportion to the share of the consideration they have advanced. In the absence of evidence of share of the consideration the co-owners shall be presumed to have equal interest in the property. Co-owners have unity of possession and commencement of title in the property but does not have unity of title or unity of interest in the property. Joint owner of the property cannot be said to have title and interest in the property of another co-owner. Every joint owner has his individual title and interest in the property purchased jointly by them. Thus relinquishment of title and interest in the joint property by one joint owner in favour of another joint owner
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would only be transfer of interest of one joint owner in favour of another joint owner, each joint owner having distinguishable, independent, individual title in the jointly purchased property.
9. The right, title and interest of Laxman Singh in the property jointly purchased cannot be said to have co-existence with the right title and interest of the petitioner in the property. The deed, although styled as a release deed, in effect, had conveyed the title and interest of Laxman Singh in the property in favour of Gyan Chand the petitioner and, thus, the release deed having been, in fact, deed of conveyance was rightly charged with the stamp-duty as deed of conveyance."
aforesaid decision, Sri M.R. Rajagopal, learned Senior Counsel contended that the Trial Court committed a grave error in dismissing the suit O.S.No.174/1995 filed by the son of Nagappa Reddy and decreeing the suit O.S.No.215/1995 filed by Smt. Lakshmamma W/o Narayana Reddy and sought for allowing the appeal.
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taken by the defendants in O.S.No.215/1995 , except a simple denial that the suit is not properly valued and therefore, Trial Court did not deem it fit and raise any appropriate issue in regard to the maintainability of the suit or for that matter, the improper Court fee and thus decreed the suit of Smt. Lakshmamma and dismissed the
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suit of K.N.Sananda Ganesh and therefore, sought for dismissal of both the appeals.
points would arise for consideration:
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O.S.No.174/1995 was recalled and an explanation was sought to be provided as to the joint possession. However, in the further examination-in-chief and in cross examination, again there is a categorical admission by K.N.Sananda Ganesh that till death of Narayana Reddy and Nagappa Reddy the suit property was enjoyed by them in joint possession.
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registration, otherwise same cannot be countenanced in the eye of law.
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O.S.No.215/1995 who is plaintiff Lakshmamma was not even confronted with the document dated 30.01.1980 (Ex.P.4) and get the signature confirmed. It is only a power of attorney of Lakshmamma who is examined as P.W.1 in O.S.No.215/1995 has been confronted with Ex.P.6 which is a sale deed wherein Narayana Reddy's signature was admitted by power of attorney of Lakshmamma -Sri.Ventakaswamy R., accepted the signature and same is marked as Ex.P.6(a).
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the right, title and interest in the schedule property has flown from Narayana Reddy to Nagappa Reddy under Ex.P.4 no other documents are produced nor any witnesses have been examined. P.W.2 and P.W.3 who are examined in O.S.No.174/95 does not even know the contents of Ex.P.4 which is the document by which Nagappa Reddy said to have acquired the entire right, title and interest to the extent of half share of Narayana Reddy in the suit property. Revenue entries are also not helpful in this regard. All these aspects have been appreciated by the trial Judge in the impugned Judgment.
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39. Further, learned Senior counsel
Sri.M.R.Rajagopal representing the appellant in RFA 1915/2005 however placed reliance on the decision in the case of Gyan Chand Vs State, rendered by the High court of Rajasthan reported in AIR 1998 Rajasthan 223 cited supra . To substantiate his argument plain reading of paragraphs 8 and 9 of said decision referred to supra, it could be seen that if the parties have contributed for the acquisition of a property jointly the proportionate interest would be acquired by them. Proviso to Section 45 of Transfer of Property Act assumes importance in this regard referred to supra.
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in the suit schedule property is perfectly justified and arguments put forth by the defendant/appellant in RFA No.1915/2005 in the suit seeking partition of half share of Narayana Reddy cannot be maintained and cannot be countenanced in law.
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to non-maintainability of the suit, in the appeal, in the light of legal issue raised of Section 45 of Transfer of Property Act, the impugned Judgment cannot be found fault with.
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properly proved, this Court is of the considered view that half share of Narayana Reddy in the suit property ordered to be partitioned and a share is to be given to the legal representatives of Narayana Reddy is perfectly justified.
are answered in the Negative.
Accordingly, following order is passed:
ORDER
Both the appeals are meritless and are
hereby dismissed.
No order as to costs.
Sd/-
JUDGE
MR/SBN
3 issues framed by the court
Were the legal representatives of a joint purchaser entitled to partition of a half share where the purchasers' respective contributions were not established?
Did the unregistered agreement establish relinquishment of one joint purchaser's half share in favour of the other?
Could objections to the suit's maintainability succeed when raised for the first time in appeal without supporting pleadings and proof?
Colour shows how this judgement treated each authority
Gyan Chand Vs StateExplained¶187
AIR 1998 Rajasthan 223 · Who else cites this
1 provisions across 1 enactments
K N SANANDA GANESH
LAKSHMAMMA
SHIVASHANKAR
SHIVANANDA
RATHNA
PARVATHI
V. SRISHANANDA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
