Allowed

Smt Basamma v. Smt Kotrabasamma

Karnataka HC10 Jan 2022RSA/176/2009

Case brief

AI extract

What is this about?

In a regular second appeal, the High Court of Karnataka allowed the appellant's appeal against the dismissal of her partition suit by the First Appellate Court. The court held that the First Appellate Court re-appreciated evidence perversely. It ruled that a co-owner cannot alienate entire joint family property without partition. The sale deed was binding only on the vendor's share, not on other c

What did the court decide?

The judgment and order dated 29.11.2008 passed in R.A.No.55/2006 are set aside, and the judgment and decree dated 29.09.2006 passed in O.S.No.24/2006 is confirmed.

Smt Basamma Vs Smt Kotrabasamma — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA BENGALURU

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DATED THIS THE 10^TH DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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RSA No.176 OF 2009 (PAR)

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BETWEEN:

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SMT. BASAMMA W/O BASAPPA AGED ABOUT 42 YEARS AGRICULTURIST R/AT DOOR NO.1041 SBS NAGAR II STAGE D BLOCK, DAVANAGERE PIN CODE - 577 502.

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... APPELLANT

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(BY SRI. YOGESH FOR SRI. P.M. VIRUPAKSHAIAH, ADVOCATE)

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AND:

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SMT. KOTRABASAMMA W/O VIRUPAKSHAPPA AGED ABOUT 57 YEARS

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SRI. KOTRESHAPPA S/O SIDDALINGAPPA AGED ABOUT 47 YEARS

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RESPONDENTS 1 AND 2 ARE R/AT KEREGUDIHALLI VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT PIN CODE - 577 502.

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SRI. B. NAGARAJA SETTY S/O SOMAPPA SETTY AGED ABOUT 38 YEARS MERCHANT R/AT ARASIKERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT PIN CODE - 577 502.

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…RESPONDENTS

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(R1 SERVED, R2 SERVED BY SRI. CHANDRAPPA T, ADVOCATE FOR R3 (NOC)ABSENT)

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 29.11.2008 PASSED IN R.A. NO. 55/2006 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE, PRESIDING OFFICER, FTC-II, DAVANGERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED:29.09.2006 PASSED IN OS.NO.24/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN), HARIHAR.

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

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JUDGMENT

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Present appeal is filed by the appellant/plaintiff

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aggrieved by the Judgment and Decree dated 29.11.2008 passed in R.A.No.55/2006 on the file of Addl. Sessions Judge, Fast Track Court-II, Davanagere (hereafter referred to as 'the First Appellate Court'), in and by which, the First Appellate Court while allowing the appeal, set aside the Judgment and Decree dated 29.09.2006

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passed in O.S.No.24/2006 on the file of Civil Judge (Sr.Dn.), Harihar (hereinafter referred to as 'Trial Court'), which had decreed the suit of the plaintiff for partition.

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Brief facts of the case of the plaintiff are that one late Smt.Basamma, wife of Sri.Nanjundappa was the owner of agricultural land bearing Survey No.205/A/1 measuring 6 acres 91 cents situated at Hosakote village. She had four daughters, viz., Smt.Gangamma, Smt.Mallamma, Smt.Deveeramma and Smt.Kotrabasamma. That both the said Smt.Basamma and her husband died about 40 years back. After demise of Smt.Basamma and her husband, their four daughters succeeded to the aforesaid land. That the second daughter Smt.Mallamma and her husband died issueless. The first daughter Smt.Gangamma married to one Malleshappa. As she was well placed, she had relinquished her share in the property in favour of the third and fourth daughter, namely, Smt.Deveeramma and

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Smt. Kotrabasamma. Accordingly, the mutation in respect of the aforesaid property was effected in the

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names of Smt.Deveeramma and Smt.Kotrabasamma with the consent of said Smt.Gangamma. That the plaintiff and Defendant Nos.1 and 2 are the children of Smt.Deveeramma. Smt.Kotrabasamma had a daugher by name Smt.Halamma. That there was a partition between Smt.Deveeramma and Smt.Kotrabasamma dividing the aforesaid property equally each being entitled to 3 acres 45 cents. Thus, the aforesaid property being the absolute property of Smt.Basamma was succeeded to her by her daughters Smt. Deveeramma and Smt.Kotrabasamma. That plaitniff and the defendants 1 and 2 being the heirs of Smt.Deveeramma are entitled for 1/3rd share each in the said property. That the plaintiff had requested the Defendant No.2, her brother for partition and separate possession of the suit schedule property which was evaded on one pretext or the other. That during the first week of February 2006, plaintiff learnt that Defendant No.2 had sold the suit schedule property to Defendant No.3 and that the said deed of sale was not binding on them. Hence, sought for partition and

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separate possession of her 1/3rd share in the suit schedule property.

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Upon service of summons, Defendants 1 and 2 appeared and filed written statement admitting the plaint averments and paid Court Fee for their respective shares in the property. Defendant No.3, the purchaser of the property from Defendant No.2 filed written statement denying the plaint averments and also contended that the suit was barred by limitation. It was contended that the Defendant No.2 was the absolute owner of the suit schedule property to the extent of 3 acres 45 cents and in exercise of his ownership, had sold the same for a valuable sale consideration in favour of Defendant No.3 by executing a registered sale agreement. That since the Defendant No.2 had failed to perform his part of the contract, Defendant No.3 was constrained to file a suit in O.S.No.510/2002 on the file of the Civil Judge (Sr.Dn.), Harihar, seeking relief of specific performance. That after the contest, the said suit came to be decreed on 06.10.2004. Aggrieved by the said Judgment and

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Decree, the Defendant No.2 herein (who was the defendant in the said suit) had preferred a regular appeal in R.A.No.248/2004 before the District Judge, Davanagere, which was allowed directing Defendant No.3 herein (who was plaintiff therein) to pay a sum of Rs.5,000/- to Defendant No.2 herein and obtains deed of sale in respect of the suit property. It is further contended by the Defendant No.3 that the present suit for partition has been filed by the plaintiff in collusion with Defendant Nos.1 and 2. That he is the bonafide purchaser of 3 acres 45 cents of land for valuable consideration. Defendant No.2 had sold the suit schedule property for discharge of his family debts. As such, the sale was binding on the plaintiff and Defendant No.1. Hence, sought for dismissal of the suit.

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The Trial Court based on the pleadings, framed

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following issues:

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i) Whether the 3rd defendant proves that the suit property is absolute property of 2nd defendant and as such he was competent to sell it?

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ii) Whether the 3rd defendant proves that he is a bonafide purchaser of the suit property for value?

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iii) What is the effect of judgment & decree passed in O.S. No.510/02 on the file of this court

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iv) Whether the judgment & decree passed in O.S No.510/02 bind the plaintiff and the 1st defendant?

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v) What order or Decree?

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The Trial Court recorded the evidence of the plaintiff, examined herself as P.W.1 and exhibited six documents at Ex.P1 to Ex.P6. Defendants 1 and 2 examined themselves as D.Ws.1 and 2, Defendant No.3 as D.W.3. On appreciation of evidence, the Trial Court decreed the suit holding that the plaintiff is entitled for 1/3rd share in the suit property by metes and bounds. Similarly, Defendant No.1 and Defendant No.2 are also held to be entitled for 1/3rd share each and directed to draw the preliminary decree thereof.

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Aggrieved by the said Judgment and Decree dated 29.09.2006, Defendant No.3 (purchaser of the property from Defendant No.2) filed regular appeal in

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R.A.No.55/2006. Considering the grounds urged by the Defendant No.3 in the aforesaid Regular Appeal, the First Appellate Court framed following points for its consideration:

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i) Whether the 3rd defendant is bonafide purchaser for valuable consideration of the suit schedule property under registered agreement of sale dated:23.11.1999 and that his interest is required to be protected?

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ii) Whether the plaintiff had made out a case for partition and allotment of 1/3rd share in the suit schedule property as alleged in the plaint?

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iii) Whether the judgment and decree dated:29.09.2006 granting the decree of partition in favour of the plaintiff is legally sustainable in law?

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iv) Whether the appellant had made out a case for production of additional evidence U/o. 41 R.27 CPC as prayed in I.A.No.I?

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v) What Order?

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On re-appreciation of the material evidence, the

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First Appellate Court allowed the appeal, setting aside the Judgment and Decree dated 29.09.2006 passed by the

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Trial Court in O.S.No.24/2006 and dismissed the suit. Aggrieved by the same, the appellant/plaintiff is before

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this Court by way of this regular second appeal. This Court, while admitting the above appeal, by order dated 05.03.2010, had framed the following substantial question of law:

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"Whether re-appreciation of evidence by the Appellate Court is perverse which resulted in miscarriage of justice?"

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Learned counsel for the appellant reiterating the

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grounds urged in the memorandum of appeal submitted that the suit schedule property is the absolute property of Smt.Basamma who had left behind four daughters, of which, one daughter Smt.Mallamma passed away issueless, eldest daughter being Smt.Gangamma had relinquished her share in the said property in favour of Smt.Deveeramma and Smt.Kotrabasamma. Smt.Deeveramma and Smt.Kotrabasamma being daughters of Smt.Basamma and Sri.Nanjundappa, were entitled to the extent of 3 acres 45 cents each. That upon the demise of Smt.Deeveramma, PlaintiffsDefendants 1 and 2 being her only legal heirs became

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entitled for 1/3rd share each in the suit schedule property. Thus, he submits suit schedule property being streedhana, plaintiff and defendants 1 and 2 are entitled for 1/3rd equal share therein which fact has not been taken into consideration by the First Appellate Court. He submits that the finding given by the First Appellate Court that the plaintiff and Defendant No.1 by staying away separately after their marriage had abandoned their share, and therefore, are not entitled to maintain the suit is unjustifiable and illegal. He submits that the further reasoning given by the First Appellate Court that the Defendant No.3 is a bonafide purchaser of the property is against the facts and circumstances of the case as the First Appellate Court has not adverted to cardinal principal of law with regard to the streedhana inherited by the plaintiff and Defendants 1 and 2, which is a statutory right, and the Defendant no.2 by means of an illegal conveyance, cannot deprive the plaintiff of her share in the suit schedule property. He submits that the Trial Court had appreciated the factual and legal aspects of the matter, thus the Judgment and Order passed by

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the First Appellate Court cannot be sustained and the question of law framed by this Court needs to be answered in favour of the appellant/plaintiff consequently, allowing the appeal.

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This matter was posted on 07.01.2022, on which date, this Court heard the counsel for the appellant/plaintiff. As the counsel for the respondent was absent, in the interest of justice to provide an opportunity, the matter was again listed today, i.e., on 10.01.2022. Even today, learned counsel for the respondent has remained absent. Learned counsel for the appellant addressed further arguments. Heard the counsel for the appellant/plaintiff.

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The fact that suit schedule property being the absolute property of Smt.Basamma and Ex.P5, the mutation entry reflecting the name of original owner Smt.Basamma has not been disputed. As contended by the Defendants 1 and 2 in their written statement, suit schedule property originally belonged to Smt.Basamma. Smt.Basamma passed away leaving behind four

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daughters. First daughter, viz.., Smt.Gangamma had relinquished her share in favour of third and fourth daughter of Smt.Basamma, viz., Smt.Deveeramma and Smt.Kotrabasamma. Second daughter Smt.Mallamma died issueless. This aspect of the matter has remained unchallenged making it clear that the schedule property was the property belonging to Smt.Basamma and succeeded by Smt.Deeveramma and Smt.Kotrabasamma in equal proportion. As rightly concluded by the Trial Court, upon the demise of Smt.Deveeramma, the plaintiff and defendants being her legal heirs are entitled for 1/3rd share each in the schedule property. Therefore, whether the Defendant No.2-Sri.Kotreshappa being son of Smt.Deveeramma, could have conveyed entire property in favour of Defendant No.3 is a question which had to be answered taking into consideration the legal position of the entitlement of the parties. It is necessary to note at this juncture that the Defendant No.3 who is the purchaser of the property alone has contested the suit. It is his case that the schedule property is the absolute property of the Defendant No.2 and Defendant

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No.2 in rightful exercise of his ownership had entered into an agreement of sale and since he refused to perform his part of the contract, Defendant No.3 was constrained to file suit in O.S.No.510/2002 which was decreed directing the Defendant No.2 to execute the sale deed and which decree was confirmed in R.A.No.248/2004 filed by Defendant No.2. Based on these three incidents, he submits that he is a bonafide purchaser and the sale deed is binding on the plaintiff and Defendant No.1 as well.

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When the property admittedly is streedhana in which plaintiffs/defendants 1 and 2 being legal heirs of Smt.Deveeramma, had their specific undivided 1/3rd share each therein, the defendant No.2 alone could not have alienated the entire property in favour of Defendant No.3. The sale could only be valid to the extent of share of the Defendant No.2.

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It is relevant at this juncture to refer to the provisions of Section 44 of Transfer of Property Act, which is extracted hereinunder:

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"44. Transfer by one co-owner.- Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.

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Where the transferee of a share of dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house".

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Further the Apex court in its judgment rendered

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in M.V.S Manikayala Rao vs. M. Narasimhaswami and others reported in AIR 1966 SC 470 at para-18

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has held as under:

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"18. Before dealing with the question as to which Article of the Limitation Act applies to the present case it is necessary to examine the legal position of persons like Sivayya who purchase shares of some of the coparceners of the Hindu Joint Family. It is well settled that the purchaser does not acquire any interest in the property sold and he cannot claim to be put in possession of any definite piece of family property. The purchaser acquires only an equity to stand in the alienor's shoes and work out his rights by means of a partition. The equity depends upon the alienation being one for value and not upon any contractual nexus. The purchaser does not become a tenant in common with the other members of the joint family. He is not entitled to joint possession with them. The alienee's suit for partition must be one for partition of the entire property and not for the partition of any specific item of, or interest in, the family property. Such a suit, however, will not be

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technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family.

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Thus, in terms of the aforesaid provision of law and Judgment referred to above, when it is established that the plaintiffs/Defendants 1 and 2 are the co-owners of the property, Defendant No.2 could not have alienated the entire property without plaintiff and the Defendant No.1 being parties to the same the Defendant No.3 ought to have ascertained the right of the Defendant No.2 to convey the entire property. As rightly observed by the trial court, there seems to be no material evidence placed on record by the Defendant No.3 with regard to he having exercised due care in ascertaining the title of Defendant No.2 before buying the property. This being the factual aspect of the mater, Defendant No.3 cannot claim to be a bonafide purchaser of the property.

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Though the Defendant No.3 filed a suit in O.S.No.10/2002 for specific performance which was decreed and later on confirmed in R.A.No.242/2004, same cannot be held to be binding on plaintiff and Defendant No.1 who are not parties to the said suit.

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As noted above, in terms of Section 44 of the Transfer of Property Act, all that the Defendant No.3 is entitled to in the property is to the extent of the share of the Defendant No.2. Sale deed therefore, cannot be held to be binding on plaintiff and the Defendant No.1. Thus, Defendant No.3 has to work out his remedy in a separate proceedings, particularly in view of the determination of share made by the trial court to the extent of 1/3rd to the plaintiff, 1/3rd to the Defendant No.1 and 1/3rd to the Defendant No.2.

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In view of the aforesaid analysis, the factual and the legal position, the substantial question of law is answered in favour of the appellant holding that the re-appreciation of the evidence by the First Appellate Court is perverse resulting in miscarriage of justice.

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As noted above, the determination of shares by

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the trial court holding plaintiff, Defendant No.1 and Defendant No.2 being entitled for 1/3rd share in the property is sustained. The agreement of sale dated 23.11.1999 executed by the Defendant No.2 and Defendant No.3 and the decree of specific performance passed in O.S.No.10/2002 and confirmed in R.A.No.242/2004, would be binding only to the extent of the share of the Defendant No.2 and the same shall not be binding on the plaintiff and the Defendant No.2.

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With the above observation, following:

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ORDER

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i) Appeal filed by the appellant/plaintiff is

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allowed;

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ii) Judgment and Order dated 29.11.2008 passed in R.A.No.55/2006 on the file of Addl. Sessions Judge, Fast Track CourtII, Davanagere, is set aside.

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iii) Judgment and Decree dated 29.09.2006 passed in O.S.No.24/2006 on the file of Civil Judge (Sr.Dn.) at Harihara is confirmed.

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In the circumstances, no order as to costs.

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Sd/JUDGE

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bnv*

Smt Basamma v. Smt Kotrabasamma

Case brief

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Smt Basamma v. Smt Kotrabasamma

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