This Regular First Appeal arose from a suit for partition dismissed by the Trial Court. The High Court upheld the lower court's decision, holding the registered sale deeds valid and dismissing the appellant's claim for share in the property.
The appeal is dismissed with costs. The judgment and decree dated 22.11.2006 confirmed.
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 29TH DAY OF MARCH, 2023
BEFORE
THE HON’BLE MRS. JUSTICE M G UMA
REGULAR FIRST APPEAL NO. 187 OF 2007 (PAR)
BETWEEN:
SMT. SHOBAVATHI W/O BASAVARAJ AGE: 35 YEARS, R/O MEDAHALLI CHITRADURGA TALUK & DIST.
... APPELLANT
(BY SRI: G.S. BALAGANGADHAR, ADVOCATE)
AND:
AGE: 85 YEARS, DEAD
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RESPONDENTS 1 TO 5 ARE RESIDING AT MUTTUGADURU VILLAGE B. DURGA HOBLI, HOLALKERE TALUK, CHITRADURGA DISTRICT - 577 501.
... RESPONDENTS
(R1 DEAD
SRI: G.M. CHANDRASHEKAR, ADVOCATE FOR R2 TO R4 R5 & R6 ARE SERVED SMT: N.V. MANJULA, ADVOCATE FOR R7)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DT.22.11.2006 PASSED IN OS.NO.174/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) HOLALKERE, DISMISSING THE SUIT FOR PARTITION.
THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 01.03.2023 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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J U D G M E N T
The appellant/plaintiff is before this Court being
aggrieved by the judgment and decree dated 22.11.2006 passed in O.S.No.174/2001 on the file of the learned Civil Judge, Senior Division, Holalkere at Chitradurga (hereinafter referred to as 'the Trial Court' for brevity) dismissing the suit filed for partition and separate possession of her 1/4th share over the Schedule Properties.
referred to as per their status and rank before the Trial Court.
filed the suit O.S.No.10/1999 against defendant Nos.1 to 7 seeking to declare that the plaintiff is entitled for 1/4th share in the suit schedule land; to effect partition and to allot her share and also to hold that any sale deeds that are entered into between defendant Nos.1, 2 to 4 are not
binding on the plaintiff.
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No.5 is his wife. The plaintiff, defendant Nos.6 and 7 are their children. Defendant Nos.2, 3 and 4 are said to be claiming the Schedule Property under the sale deeds. The Plaintiff contended that she is the coparcener of Hindu Undivided Family and that the Schedule Property i.e., the land bearing Sy.No.39/3 of Muthugaru village, measuring 8 acres 26 guntas with the boundaries mentioned therein, is her ancestral property. The plaintiff got married on 29.07.1993. Defendant Nos.1 and 5 were not having male issues and therefore, the plaintiff, defendant Nos.5, 6 and 7 constitute Hindu Joint Family and they are in joint possession of the Schedule Property.
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However, defendant No.1 started neglecting defendant No.5 and also the cultivation of the schedule land after marriage of the plaintiff and her sisters. Plaintiff came to know that defendant No.1 sold the suit land in favour of defendant Nos.2 to 4, in order to defeat the rights of his children. When defendant No.1 was questioned in this regard, he gave vague answers. Therefore, she demanded for partition and allotting her 1/4th share. Defendant No.1 refused to do so. Hence, the plaintiff filed a suit for her 1/4th share in the schedule land and accordingly, prayed for allowing the suit.
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right, interest and title over the Schedule Property.
Hence, they prayed for dismissal of the suit.
Defendant Nos.2 and 4 have filed the memo adopting the written statement filed by defendant No.3.
Court framed the following issues as under:
1. "Does plaintiff prove that the suit schedule property is the ancestral and joint family property of plaintiff and 1st defendant?
2. Does plaintiff prove that she is entitled for partition and allotment of her 1/4th share in the suit schedule land?
3. Do defendants 2 to 4 prove that they are the absolute owners in possession and enjoyment of the suit schedule land as per the regd. sale deed dated 25.06.1997 executed by defendant No.1?
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4. Whether the plaintiff is entitled to the reliefs sought in the plaint?
5. What order or decree?"
examined PW-2 and PW-3 and got marked Exs.P1 to P10 in support of her contention. Defendant Nos.2, 3 and 4 examined themselves as DW-3, DW-1 and DW-4 respectively and got examined DW-2 and got marked Exs.D1 and D10 in support of their defence. The Trial Court after taking into consideration all these materials on record, answered Issue Nos.1, 2 and 4 in the 'Negative', Issue No.3 in the 'Affirmative' and dismissed the suit of the plaintiff with cost.
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Smt.N.V.Manjula, learned counsel for respondent No.7. Perused the materials on record including the Trial Court records.
the relationship between the parties is not in dispute. The plaintiff, defendant Nos.6 and 7 are the children of Sharanappa, who died during February 2004. Defendant No.5 is the wife of deceased Sharanappa. Therefore, the plaintiff is having 1/4th share over the Schedule Property. Learned counsel further submitted that the family was not having any financial crunch. There was no necessity for raising loan. However, defendant Nos.2, 3 and 4 are contending that the Schedule Property was sold by Sharanappa- father of the plaintiff, in their favour, through 3 different sale deeds marked as Exs.D7 to 9. In those sale deeds, it is only stated that to arrange money for running the family, the property is being sold. Legal necessity for selling the property is not proved. Defendant No.1 never stated that the property was sold
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for family necessities. Under such circumstance, the plaintiff is not bound by the sale deeds marked as Exs.D.7 to 9.
contend that in a suit for partition, it is not necessary for
1 AIR 1986 Orissa 181
2 AIR 1986 KAR 90
3 1987 Allahabad 127
4 AIR 2022 SC 1640
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the plaintiff to seek cancellation of the alienations as the alienee as well as the co-sharer are still entitle to sustain alienation to the extent of the share of the co-sharer and
it is always open to the alienees to seek allotment of transfer of property to the share of the transfer in FDP proceedings by working out equities.
respondents submits that defendant Nos.2 to 4 are the transferees of the Schedule Properties much earlier to filing of the suit. Therefore, the plaintiff is not entitled
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for any share in the Schedule Properties. The trial Court
on proper appreciation of the materials on record, dismissed the suit. There are no reasons to interfere with the impugned judgment and decree and hence, he prays for dismissal of the appeal with cost.
"Whether the impunged judgment and decree passed by the Trial Court suffers from perversity or illegality and whether the appellant has made out any grounds for interference with the same?"
My answer to the above point is in the 'Negative for the following;
REASONS
seeking the relief of declaration that she is entitle for partition and allotment of her 1/4th share and also to hold that any sale deeds executed by defendant No.1 in
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favour of defendant Nos.2 to 4 are not binding on her share. It is stated that the Schedule Property measuring 8 acres, 22 guntas of the land in Sy.No.39/3 of Muthugaru village is a Joint Family Property, in which, the plaintiff is entitled for a share. Defendant No.1 is the father, defendant No.5 is the mother and defendant Nos.6 and 7 are the sisters of the plaintiff. Therefore, the plaintiff sought for 1/4th share in the Schedule Property.
contend that her father has not spent any amount to perform her marriage and that there was no necessity to sell the properties by her father. Witness states that she is not having any document to show that defendant No.1 was financially sound and there was no necessity to sell the family property. Witness identified the signature of her father on the document marked at Ex.P1. She stated that her father executed the documents without her knowledge. The plaintiff admits that as per Ex.P9, the
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property was purchased by defendant No.1, but denied the suggestion that it belongs to him exclusively.
statement made by PW-1 and PW-3. PW-3 is the husband of PW-1 and he supported the case of the plaintiff. However, during cross-examination, the witness admitted that at the time of his marriage with the plaintiff, defendant No.1 was in financial distress. Witness also admits that 8.26 acres of land was a dry land and growing of crop in the said land was depending upon the rain.
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registered sale deed dated 25.06.1997 executed by defendant No.1 in favour of D.Sadashivappa, i.e., defendant No.3 in respect of 4.06 acres (northern portion). Ex.P.5 is the copy of the sale deed executed by defendant No.1 in favour of defendant No.4Susheelamma in respect of 3 acres of land (southern portion) out of the Schedule Property. Ex.P.8 is the record of rights in respect of the Schedule Property along with other properties. Ex.P.9 is the mutation extract in
respect of the Schedule Property. Ex.P.10 is the invitation card showing the date of death of Hiriyamma.
and reiterated his contention that he had purchased a portion of the Schedule Property under the registered Sale Deed dated 25.06.1997 from defendant No.1 and
the revenue record stands in his name. He also states that the portion of the sale consideration received by defendant No.1 was given to the daughters of defendant No.1. The property was sold as defendant No.1 has
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spent huge amount to perform marriage of his daughters and also to repay the loan which he had incurred. Witness admits that the Schedule Property is the ancestral property of Sharanappa, but denied the suggestion that defendant No.1 had bad vices. Defendant Nos.6 and 7 were present when the sale deed was executed.
affidavit to the effect that defendant No.1 sold the Schedule Property in favour of defendant Nos.2 to 4 under three different sale deeds and possession was also handed over in their favour. Defendant No.1 had incurred huge expenses to perform marriages of his daughters and therefore, sold the Schedule Property. During cross-examination, witness admitted that the property is an ancestral property and the plaintiff was married in the year 1993. Defendant Nos.6 and 7 were married even earlier to that. He denied the suggestion
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that defendant No.1 had not spent much amount to perform marriage of his daughters.
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the similar agreement executed by defendant No.1. Ex.D3 is record of rights standing in the name of defendant No.4 in respect of 3 acres of land out of the Schedule Property on the basis of the sale deed. Ex.D4 is the extract of mutation register with MR No.15/19992000, mutating the name of defendant Nos.2 to 4 on the basis of the registered sale deeds. Ex.D5 is also an extract from the mutation register with ME No.13/199798 mutating the name of defendant No.2 on the basis of the sale deed. Ex.D6 is the mutation register extract with ME No.11/9997-98 mutating the name of defendant No.4. Exs.D7 to 9 are the original sale deeds executed in favour of defendant Nos.2 to 4. Ex.D10 is the patta receipt.
reliance on the decision in the case of Ganapati Santaram Bhosale Vs. Ramachandra Subbarao
Kulkarni5 wherein, the Division Bench of this Court has held that in a suit for partition by Hindu coparcener, it is
5 ILR 1985 KAR 115
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not necessary for him to seek for setting aside of the sale. It is sufficient, if he asks for his share in the Joint Family Properties and he be put in possession thereof and for a declaration that he is not bound by any alienations or interest of others created in such properties, which falls to his share. The Court also held that the burden of discharging the existence of a legal necessity found by the alienee after due and proper enquiry is on the alienee himself. The recital in the sale deeds when it is proximate in point of time to the matters in issue will not be of much assistance to the alienee. It is also held that bare recital in the sale deed is not supported by any independent evidence.
6 AIR 1986 KAR 90
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existence of the necessity and satisfied himself that the Manger of a family was acting for the benefit of the estate.
Diocese7 held at para 15 as under;
" 15. It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co sharer are still entitled to sustain the alienation to the extent of the share of the cosharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations."
that the suit property is an ancestral property held by the Hindu Undivided Family, the plaintiff has not placed on
record any material in support of the same. The revenue records produced by the plaintiff especially Exs.P2 and 6
7 AIR 2022 SC 1640
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discloses that defendant No.1Sharanappa has purchased the suit property during 1963-64 and accordingly, his name was mutated in the record of rights. Except the oral testimony of the plaintiff, there is nothing on record to substantiate that the property is an ancestral property. However the admissions on the part of the witness are to be taken into consideration that the suit property is an ancestral property. But the contention of the plaintiff that defendant No.1 was addicted to bad vices and therefore, he sold the same in favour of defendant Nos.2 to 5 is not substantiated. PW-3, the husband of PW-1 has categorically stated during crossexamination that the suit property is a dry land and it depends on the rain to raise crops. He also states that at the time when he married the plaintiff, defendant No.1 was in financial difficulties. This admission on the part of PW-3 substantiates the contention of defendant Nos.2 to 5 that defendant No.1 was having legal necessity to sell the suit property to repay the loans raised while performing the marriages of the plaintiff and her sisters.
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The plaintiff is the youngest daughter of defendant Nos.1 and 5. Her marriage was performed during 1993. All the three daughters of defendant Nos.1 and 3 are married and they were residing separately. The contention of the plaintiff that they cultivated the suit property along with defendant No.1 is not supported by any material. Admittedly, defendant No.1 sold the suit property in three different pieces in favour of defendant Nos.2 to 5 under the sale deeds- Exs.D7 to 9. As per the record of rights produced by defendant No.8, their names mutated on the basis of the said sale deeds.
filed by the plaintiff. He died during the pendency of the suit. Defendant Nos.1 and 5 have not chosen to contest the matter. They remained ex-parte . The plaintiff has not summoned defendant No.1 to depose before the Court to substantiate her contention. Admittedly, defendant Nos.1 and 5 were not having any male issues. The plaintiff and defendant Nos.6 and 7 are the only
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daughters they are having. The conduct of defendant No.1 in remaining ex-parte give rise to a reasonable doubt as to whether the suit was filed by the plaintiff in collusion with defendant Nos.1, 5 to 7. Otherwise, there would not have any reason for defendant No.1 in not participating in the proceedings and remaining ex-parte .
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reason assigned by the Hon'ble Apex Court is that the alienee as well as the co-sharer are still entitle to sustain alienations to the extent of the share of the co-sharer. It is also open to the alienee in the FDP proceedings to seek for allotment of the transferred property to the share of the transferer so that, it could be worked out in a fair manner.
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Hon'ble Apex Court in Umadevi's case is not applicable to
the facts of the present case.
Section 6 of the Hindu Succession Act was not yet amended. At that point of time, the plaintiff, defendant Nos.6 and 7 were not Coparceners and they could not have claimed equal share with defendant No.1.
The Hindu Succession Act came to be amended by inserting Section 6-A w.e.f. 30.07.1994. Equal rights to the daughters in the coparcenery property was given by declaring that the daughter of the coparcener shall, by birth, become a coparcener in her own rights in the same manner as the son having similar rights. In the meantime, Section 6 of the Hindu Succession Act was substituted by Act No.39 of 2005 w.e.f. 09.09.2005, which deals with devolution of interest in coparcenery interest. But, however, proviso to Section 6(1) saves dispossession or alienation including any partition or testamentary dispossession of property, which are taken
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place before 20.12.2004. Therefore, even if the plaintiff seeks equal share in the Schedule Property as Coparcener, the alienations made by defendant No.1 on 25.06.1997 will be saved as the same was much before the cut off date.
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declaration to that effect. Even though the contention of the learned counsel for the appellant that the plaintiff being the daughter of defendant No.1 is entitled for equal share, in view of the amendment to the Hindu Succession Act is to be accepted under normal circumstances, the same cannot be accepted to throw away the defendant Nos.2 to 4 who are the purchasers of the property from defendant No.1 when he wilfully remained ex-parte without feeling the pinch of his own deeds.
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ORDER
Registry to send back the Trial Court records along with copy of this judgment.
Sd/JUDGE
PN
3 issues framed by the court
Whether the impugned judgment and decree passed by the Trial Court suffers from perversity or illegality?
Whether the appellant has made out any grounds for interference with the impugned judgment and decree?
Whether the plaintiff is entitled to ignore registered sale deeds and revenue records to claim her share over the Schedule Property?
Colour shows how this judgement treated each authority
Nisamani Bawa and Others Vs. Laxman NayakRelied on¶68
(1) Nisamani Bawa and Others Vs. Laxman Nayak
Ningegowda & Others Vs. Doddegowda and othersRelied on¶68
(2) Ningegowda & Others Vs. Doddegowda and others
Chheda Lal and Another Vs. Lal & AnotherRelied on¶68
(3) Chheda Lal and Another Vs. Lal & Another
Mrs. Umadevi Nambiar Vs.Thamarasseri Roman Catholic DioceseDistinguished¶68
Mrs. Umadevi Nambiar Vs.Thamarasseri Roman Catholic Diocese
Ganapati Santaram Bhosale Vs. Ramachandra Subbarao KulkarniRelied on¶115
Ganapati Santaram Bhosale Vs. Ramachandra Subbarao Kulkarni
Ningegowda and Others vs. Doddegowda and othersDistinguished¶120
Ningegowda and Others vs. Doddegowda and others
3 provisions across 2 enactments
SMT. SHOBAVATHI W/O BASAVARAJ
PARAMESHWARAPPA S/O KALAPPA
G. SADASHIVAPPA S/O SHIVALINGAPPA
SMT. SUSHEELAMMA S/O SHEKARAPPA
SMT. SHANKARAMMA W/O CHANDRAPPA
M G UMA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
