Dismissed

Smt. K.C. Leelavathi v. Smt. Ramanjanamma

Karnataka HC8 Aug 2023RFA/418/2017

Case brief

AI extract

What is this about?

In a partition suit, the High Court of Karnataka dismissed the appeal against the trial court's rejection of the plaint. The court held the suit was barred by limitation under Article 109 of the Limitation Act and that the daughter was not entitled to a share as the self-acquired property was alienated before the 2005 amendment.

What did the court decide?

The appeal filed by the appellant-plaintiff is hereby dismissed.

Smt. K.C. Leelavathi Vs Smt. Ramanjanamma — Succession and Inheritance | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF AUGUST, 2023 BEFORE

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THE HON'BLE MR. JUSTICE K. NATARAJAN

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REGULAR FIRST APPEAL NO.418 OF 2017

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BETWEEN:

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SMT. K.C. LEELAVATHI D/O LATE K.M. CHIKKAMUNIHUCHAIAH W/O SRI B.N. CHANDRAIAH AGED ABOUT 58 YEARS RESIDING AT NO. 42, 2ND CROSS, 2ND MAIN, SANJEEVINI NAGARA, MOODALAPALYA, VIJAYANAGARA BANGALORE - 560 072

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... APPELLANT

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(BY SRI VARADARAJAN M.S., ADVOCATE AND SRI SANTHOSH, ADVOCATE)

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AND:

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1 . SMT. RAMANJANAMMA W/O LATE K M CHIKKAMUNIHUCHAIAH, AGED ABOUT 74 YEARS

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2 . SMT K C PREMA W/O SRI LATE PADMANABHAIAH, D/O LATE K M CHIKKAMUNIHUCHAIAH AGED ABOUT 53 YEARS

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3 .	SMT K C VIJAYA AGED ABOUT 49 YEARS W/O SRI RUDRAPPA D/O LATE SRI K M CHIKKAMUNIHUCHAIAH
4 .	SMT LAKKAMMA W/O SRI KEMPAIAH AGED ABOUT 73 YEARS
	R1 TO R4 ARE R/AT KAKOLU VILLAGE
	KAKOLU POST HESARAGHATTA HOBLI,
	BANGALORE NORTH TALUK , BANGALORE RURAL DISTRICT - 560 088
5 .	SRI S H HANUMAIAH S/O LATE SRI HANUMANTHARAYAPPA SINCE DEAD BY LRS.
5A .	SRI ASHWATHAMMA W/O. LATE HANUMAIAH AGED ABOUT 75 YEARS
5B.	SRI MURTHY S/O. LATE HANUMAIAH AGED ABOUT 50 YEARS
5C.	SRI BYREGOWDA S/O LATE HANUMAIAH AGED ABOUT 45 YEARS
5D.	SRI RAMESHA S/O LATE HANUMAIAH AGED ABOUT 40 YEARS
5E.	MS. SHOBHA
	D/O LATE HANUMAIAH
	AGED ABOUT 37 YEARS

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5F. MS. VANAJAKSHI D/O LATE HANUMAIAH AGED ABOUT 32 YEARS

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5G. MS. BHAGYAMMA D/O LATE HANUMAIAH AGED ABOUT 32 YEARS

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RESPONDENTS 5 (A-G) ARE R/AT SHANUBHOGANAHALLI HISARAGHATTA HOBLI BENGALURU NORTH TALUK BENGALURU URBAN DISTRICT - 560 089

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... RESPONDENTS

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(BY SRI HARISHA A.S., ADVOCATE FOR R1 TO R3, SRI H.J. ANANDA, ADVOCATE FOR R4 AND R5 SRI K. VIJAYAKUMAR, ADVOCATE FOR R5 (A TO G))

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF C.P.C., AGAINST THE ORDER DATED 20.10.2016 PASSED ON IA NO.IV AND PRELIMINARY ISSUE NO.III IN OS NO.96/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE., ALLOWING THE IA NO.IV FILED UNDER ORDER 7 RULE 11(a) (b) (c) AND (d) READ WITH SECTION 151 OF CPC., FOR REJECTION OF THE PLAINT.,

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THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 1.8.2023 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the appellant-plaintiff under Section 96 of Code of Civil Procedure for setting aside the order dated 20.10.2016 passed on I.A. No.4 and preliminary issue No.III in O.S. No.96/2013 pending on the file of I Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, for having rejected the plaint under Order VII Rule 11 of Code of Civil Procedure (hereinafter referred to as 'CPC').

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Heard learned counsel for the appellant and learned counsel for respondents.

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The rank of the parties before the trial Court is retained for the sake of convenience.

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The case of the plaintiff is that she filed suit for decree of partition and separate possession of her 1/4th share in the suit schedule property and to declare the sale

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deed dated 07.05.1990 executed in favour of defendant No.4 by the father of the plaintiff and also the sale deed dated 26.05.2003 executed by defendant No.4 in favour of defendant No.5 as null and void and not binding on the plaintiff in respect of the property bearing Sy.No.51/5, New No.51/8 measuring 1 acre 4 guntas situated Shanuboganahalli Village, Hesaraghatta Hobli, Bengaluru North Taluk (hereinafter referred to as 'suit schedule property').

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After appearance of the defendants, written statement was filed by defendant No.5. The defendant No.5 also filed I.A. No.IV under Order VII Rule 11 of CPC on the ground that the plaint does not disclose the cause of action, the suit property was not properly valued, the suit was barred by law and the plaintiff was not entitled for any share in view of the amendment to Section 6 of Hindu Succession Act as the sale deed was effected prior to 20.12.2004. The plaintiff filed the statement of objections by denying the averments in the affidavit accompanying

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the I.A. contending that she was the coparcener in respect of ancestral property and there was no partition among the family members and the father of the plaintiff was misguided by defendant No.4, who committed fraud. In fact, the suit schedule property had been mortgaged to defendant No.4, but he played fraud and got executed the sale deed. The execution of the sale deed came to the knowledge of the plaintiff when she wanted to redeem the mortgage after the death of her father. Therefore, it was contended that the suit was within the limitation and not barred by law. Hence, prayed for dismissing the application.

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After considering the arguments, the trial Court

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allowed the application filed by defendant No.5 and rejected the plaint by the impugned order, which is under challenge.

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Learned counsel for the appellant-plaintiff has

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contended mainly on the ground that the cause of action is

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the bundle of facts, which has to be proved by way of trial. The suit is not barred by limitation in view of Section 17 of Limitation Act. The averments made in the plaint clearly reveal that the fraud has been committed by defendant No.4 and hence, without conducting trial, the plaint cannot

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be rejected and without considering the facts, the trial Court has committed error in allowing the application. The learned counsel has further contended that Article 109 of the Limitation Act does not attract as the sale of the suit schedule property was came to the knowledge of the plaintiff after the death of her father, when she obtained RTC and therefore, it is within 3 years from the date of obtaining the RTC and therefore, Article 109 of Limitation Act is not applicable. In support of his arguments, the learned counsel for the appellant-plaintiff has relied upon the judgment of this Court in the case of SHRI KHIRASA

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AND OTHERS Vs. SMT. SHANTA ALIAS GEETA AND

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OTHERS reported in ILR 2023 KAR 137 .

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Per contra, the learned Counsel for the

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respondents has contended that the entire case of the plaintiff is said to be based upon the fraud committed by the 4th defendant, but absolutely, there is no mention in the plaint about the fraud committed by the 4th defendant.

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The impugned sale deed was executed on 07.05.1990 and after 23 years, the suit came to be filed for declaring the said sale deed as null and void. Even the plaintiff has not stated the date of execution of sale deed by the father of the plaintiff and in the year 1990, the date was mentioned only in the prayer column. Therefore, the suit was required to be filed within 12 years of the execution of the sale deed by the plaintiff's father. Even the sale deed of the 5th defendant is also pertaining to the year 2003. As per Article 109 of Limitation Act, the suit would have to be filed within 12 years, but the suit was filed beyond 23 years, thereby the suit is barred by limitation. Even on perusal of the plaint averments, the plaintiff was not arrested that the 4th defendant played fraud on her father,

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but her father himself informed the family members that he has mortgaged the property to the 4th defendant. He further suppressed the fact of sale deed executed by him. Therefore, the question of taking contention that the property was mortgaged and fraud committed by the 4th defendant, does not arise. The learned counsel for the respondents further contended that the suit schedule property was derived by the plaintiff's father long back, by way of partition and prior to the commencement of the Hindu Succession Act, both the sale deeds were executed. The suit schedule property belongs to the plaintiff's father and the plaintiff is not entitled for any share as per Section 6 of the Hindu Succession Act. Hence, prayed for dismissing the appeal.

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Having heard the arguments of learned counsel

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for the parties, perused the records.

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Admittedly, the trial Court passed the order under Order VII Rule 11 of CPC by formulating the following points for consideration :

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(i) Whether the defendant No.5 proves that the plaint does not disclose the cause of action ?

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(ii) Whether the defendant No.5 further proves that the suit of the plaintiff is not properly valued ?

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(iii) Whether the defendant No.5 further proves that the suit was barred by law.

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However, as per the application filed by the 5th defendant, he has categorically taken the contention that the father of the plaintiff executed the sale deed in favour of the 4th defendant in the year 1990 and there was no fraud played on the plaintiff's father and also that, as per the Hindu Succession Act, the plaintiff was not entitled for any share. Even otherwise, the Hindu Succession Act came into force in the year 2004 and there is a cut-off date given by the legislature that, if any alienation is

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effected prior to 20.12.2004, it is not open for challenge by the daughters seeking any share in the property.

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Having heard the arguments of learned counsel

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for the parties, the points that arise for consideration of this Court are as follows:

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(1) Whether the suit is barred by law as per Article 109 of Limitation Act ?

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(2) Whether the cause of action arose for filing the suit ?

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(3) Whether the plaintiff is having right for partition in the suit schedule property as claimed in the plaint in view of Section 6 of Hindu Succession Act?

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(4) Whether the judgment of the trial Court calls for interference by this Court?

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As regards to point No.1 framed by this Court,

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on perusal of the plaint averments, it is well settled by the Hon'ble Supreme Court in catena of decisions that, for the purpose of rejecting the plaint, the Court is required to verify the averments made in the plaint and not the averments made in the written statement filed by the

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defendants. It is also well settled that the cause of action for filing the suit on the ground of partition and also on the point of limitation, is a mixed question of law and facts. The Hon'ble Supreme Court in a recent judgment in the case of SHAKTI BHOG FOOD INDUSTRIES LIMITED

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Vs. THE CENTRAL BANK OF INDIA AND OTHERS reported in AIR 2020 SC 2721 has held that the cause of action for filing the suit would consist the bundle of facts and the factum of the suit being barred by the limitation would be mixed question of facts and law and accordingly, has held that the rejection of plaint is improper. By keeping the principles laid down by the Hon'ble Supreme Court and the judgment of the Division Bench of this Court in RFA No.536/2013 dated 31.05.2021 in respect of Section 6 of the Hindu Succession Amendment Act, 2005, whether the plaintiff entitled for any share as a coparcener.

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On this background, now coming to the plaint averments of the plaintiff, admittedly, the plaintiff has stated in the plaint that suit schedule property was fallen to the share of her father by way of unregistered partition deed dated 07.09.1968 and she claims that she is having 1/4th share in the suit schedule property. It is further admitted by the plaintiff that her father executed sale deed in favour of the 4th defendant on 07.05.1990. It is further contended that "her father informed that the property has been mortgaged with 4th defendant. At para 9 of the plaint, it is contended that her father pretended that he mortgaged the property but he has executed the sale deed in favour of the 4th defendant, but contended that without the plaintiff's knowledge and the consent, the sale deed took place." It is also an admitted fact that the plaintiff also stated that the suit schedule property has been sold by the 4th defendant to the 5th defendant on 26.05.2003.

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Admittedly, the suit was filed in the year 2013. As per Article 109 of Limitation Act, a suit is required to be filed within 12 years from the date of the execution of sale deed by the father of the plaintiff which was executed in the year 1990. The plaintiff has contended that fraud has been averred in the plaint and therefore, Section 17 of the Limitation Act attracts but not Article 109 of the Limitation Act. For convenience, Article 109 and Section 17 of the Limitation Act, are referred as under:

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Article 109 of the Limitation Act

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109. By a Hindu Twelve years When the governed by alienee takes Mitakshara law to possession of set aside his father's the property. alienation of ancestral property.

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Section 17 of the Limitation Act:

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(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,—

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(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

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(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

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(c) the suit or application is for relief from the consequences of a mistake; or

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(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:

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Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which—

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(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase

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know, or have reason to believe, that any fraud had been committed, or

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(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or

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(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.

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(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:

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Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be."

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On perusal of Section 17 of the Limitation Act, when a fraud has been averred in the plaint and from the date of knowledge of fraud that was committed, the suit can be filed. However, as per Rule 109 of the Limitation Act, the suit is required to be filed within 12 years from the date the plaintiffs' father executed the sale deed in favour of the 4th defendant. Admittedly, the plaint averments do not reveal any fraud played by the 4th defendant on her father and on the other hand, at para 9 of the plaint, the plaintiff has stated that "her father Chikkamunihuchchaiah had misrepresented the fact though he alienated the suit schedule property in favour of the 4th defendant, he pretended that he mortgaged the property", which clearly reveals that there is no fraud alleged to be played by the 4th defendant and on the other hand, it may be fraud played by plaintiff's father by selling the property and he has intimated that he has only mortgaged the property. Therefore, absolutely, the suit is barred by limitation which

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falls under Article 109 of the Limitation Act as the suit is barred by limitation, as per Order VII Rule 11(d) of CPC.

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Another contention taken by the defendants is

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that the suit schedule property was the self-acquired property of the father of the plaintiff and the sale was effected prior to 20.12.2004 and therefore, it is not open for the plaintiff to seek any partition in the share. In support of his contention, the learned counsel for respondents-defendants has relied upon the judgment of the Division Bench of this Court in R.F.A. No.536/2013 (partition) dated 31.05.2021, wherein at paragraph 10 of the judgment, the division bench has held as under:

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10. In the backdrop of aforesaid well settled legal principles, we may advert to the facts of the case on hand. As per averments made in the plaint itself, the land in question was the ancestral property of Javeregowda and the same has devolved on defendants 1 to 3 by successorship. The aforesaid property has been sold by a registered sale deed dated

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08.07.1996 by defendants 1 to 3 to defendant No.4 for a consideration of Rs.2,75,000/-. The copy of the sale deed has been enclosed along with the plaint which is evident from the record. It is pertinent to note that Supreme Court in VINEETA SHARMA supra has held that the rights can be claimed by the daughters born earlier with effect from 09.09.2005 as provided in Section 6(1) of the Hindu Succession Act as to the disposition, alienation, partition or testamentary disposition which has taken place before 20.12.2004. In the instant case, the alienation has taken place on 08.07.1996 and the claim of daughters of defendants 1 to 3 viz., plaintiffs 1 to 7, 10 and 11 / appellants 1 to 7, 10 and 11 is barred by proviso to Section 6(1) of the Hindu Succession Act as amended by Hindu Succession (Amendment) Act No.39 of 2005 with effect from 09.09.2005. Thus claim of aforesaid plaintiffs is barred by law. It is pertinent to note that plaintiffs 8 and 9 / appellants 8 and 9 were minors on the date of execution of the sale deed and on attaining majority they have not filed the suit within a period of three years.

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Admittedly, in this case, the plaintiff was major and married person, when father of the plaintiff executed the sale deed in the year 1990, the suit came to be filed in the year 2013 after lapse of 23 years. In view of the amendment to the Section 6 of Hindu Succession Act, which came into effect from 09.09.2005 and cut off date to prescribed that, if the alienation or partition or testamentary dispossession, which has taken place before 20.12.2004, the daughters are not entitled for claiming any share in the property of her father. Therefore, on this ground, the cause of action does not arise for filing the suit and demanding any partition in the suit schedule property, which was alienated 23 years back from the date of filing the suit and also the plaintiff cannot seek any partition in the suit schedule property. The Hon'ble Supreme Court, in a judgment in the case of UTTAM VS. SAUBHAG SINGH AND OTHERS , delivered in [Criminal Appeal No.2630/2016 arising out of SLP (Civil) No.6036/2014], at paragraphs 20 and 21, has held as under:

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"20. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe, (1988) 2 SCC 126 , Sheela Devi v. Lal Chand [Sheela Devi v. Lal Chand, (2006) 8 SCC 581] and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419 were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarised as follows:

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(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).

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(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.

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(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.

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(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.

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(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.

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(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in-common and not as joint tenants.

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21. Applying the law to the facts of this case, it is clear that on the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and the other coparceners, devolved by succession under Section 8 of the Act. This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants-incommon and not as joint tenants. This being the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would

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not be maintainable. The appeal is consequently dismissed with no order as to costs."

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In view of the judgment of the Hon'ble

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Supreme Court and that the father of the plaintiff has already sold the property during his life time, prior to the commencement of Section 6 of Hindu Succession Act, the plaintiff cannot claim any share in the suit schedule property and thereby, no cause of action arose for filing the suit.

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As regards to point No.2 formulated by the trial Court, the valuation has been made by the plaintiff for the purpose of court fee and the court fee paid by the plaintiff is sufficient as the suit was valued under Section 35(2) of Karnataka Court Fees and Suits Valuation Act, 1958. Therefore, the trial Court has rightly given finding in respect of point No.2.

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Though the defendants have not filed any cross appeal but they can defend the order of the trial Court as per Order XLI of Rule 22 of CPC, defendant No.5 has already taken contention in the written statement and in the I.A. in respect of Section 6 of Hindu Succession Act that the suit schedule property is the self acquired property of the father of the plaintiff, but the same was not considered by the trial Court and the respondent can address the argument in the appeal, he can argue for that ground.

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Considering the facts and circumstances of the case, I am of the view that the trial Court has rightly considered the plaint that the plaint averments do not disclose the cause of action, suit is barred by limitation and in addition to that, the plaintiff is not entitled for any share in the property of her father as it was alienated by him during his life time in the year 1990, and suit is filed after 23 years and thereby, the order of the trial Court does not call for interference by this Court.

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Accordingly, the appeal filed by the appellant-plaintiff

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is hereby dismissed.

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Sd/JUDGE

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Smt. K.C. Leelavathi v. Smt. Ramanjanamma

Case brief

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Smt. K.C. Leelavathi v. Smt. Ramanjanamma

Case brief

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