Allowed

Rudrappa S/O Sri Badagi Thippaiah v. Hanumakka W/O Sri Eranna

Karnataka HC24 May 2023RSA/159/2010

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for property declaration, the High Court held that evidence from a radiologist and age certificate was insufficient to prove the respondents were minors at the time of a 1986 sale deed. The court dismissed the suit, setting aside lower courts' orders that declared the deed void.

What did the court decide?

Second appeal allowed; judgment and decree of lower courts in civil suit dismissed; suit for declaration dismissed.

Rudrappa S/O Sri Badagi Thippaiah Vs Hanumakka W/O… — Specific Performance | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF MAY, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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R.S.A. NO. 159 OF 2010 (DEC/INJ)

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BETWEEN:

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1 . SRI. RUDRAPPA S/O SRI BADAGI THIPPAIAH AGED 65 YEARS

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2 . SRI RANGAPPA S/O SRI BADAGI THIPPAIAH

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AGED 63 YEARS

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BOTH R/A BARHAMPURA VILLAGE, AIMANGALA HOBLI, HIRIYUR TQ, CHITHRADURGA DIST-577501

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...APPELLANTS

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(BY SRI.G.B.NANDISH GOWDA, ADVOCATE FOR SRI.R B SADASIVAPPA, ADVOCATE)

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AND:

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1 . SMT. HANUMAKKA W/O SRI ERANNA AGED 48 YEARS

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2 . SMT. CHITTAMMA W/O SRI THAMANNA AGED 46 YEARS

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BOTH R/A YELAGHATTA GOLLARAHATTI,

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CHELLAKERE TQ, CHITHRADURGA DIST-577501

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…RESPONDENTS

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(R1 & R2 ARE SERVED & UNREPRESENTED)

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THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DTD 7.12.2009 PASSED IN R.A.NO.16/2006 ON THE FILE THE ADDL. SESSIONS FAST TRACK JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD: 28.2.2006 PASSED IN O.S.NO.132/1995 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN) CHITRADURGA.

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THIS RSA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 03.08.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is filed by defendants assailing the concurrent judgments of the Courts below wherein plaintiffs suit is decreed declaring plaintiffs as absolute owners of the suit schedule properties and consequently, the defendants are directed to deliver possession of the suit schedule properties to the plaintiffs within a period of three months from today.

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2. For the sake of brevity, the parties are referred to

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as per their rank before the trial Court.

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The plaintiffs instituted a suit by contending that

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the suit schedule properties were originally owned by one Puttamma and that after her death, the mother of plaintiff Nos.2 and 3 and wife of plaintiff No.1 inherited the properties left behind by her mother Puttamma. The plaintiffs further claimed that the daughter of Puttamma by name Kariyamma who is the mother of plaintiff Nos.2 and 3 died about 17 years ago. The plaintiffs further contended that after the death of Kariyamma, plaintiff No.1 married Eramma who is the second wife. Since Eramma developed hostile attitude towards plaintiff Nos.2 and 3, the plaintiff No.1 requested one Sannakka wife of one Baggajja of Yalagatta Gollarahatty in Challakere Taluk who is the maternal aunt of plaintiff Nos.2 and 3 to look after the minor daughters i.e., plaintiff Nos.2 and 3. The plaintiffs further claimed that they are illiterate and after death of Kariyamma, they did not get their name

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mutated to the properties in question. However, plaintiff Nos.2 and 3 claimed that they are in exclusive possession over the suit lands along with plaintiff No.1.

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The present suit is filed alleging that in the month of July, 1995, while defendants made an attempt to get their names mutated to the revenue records, they found that the defendants are asserting title based on the registered sale deed dated 17.09.1986. The plaintiff Nos.2 and 3 claimed that they never executed any sale deed in favour of defendants and therefore, contended that sale deed is concocted by defendants in collusion with the witness and scribe and therefore, sought relief of declaration and possession. The plaintiffs also claimed that they were minors and therefore, question of alienating the suit lands in favour of defendants would not arise.

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After receipt of summons, the defendant Nos.1 and

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2 who are the purchasers contested the proceedings. The

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defendants filed written statement and stoutly denied the entire averments made in the plaint. The defendants on the contrary claimed that plaintiff Nos.2 and 3 being daughters of one Kariyamma inherited the properties and the plaintiff No.1 being husband is not a Class-I heir and therefore, he has not succeeded to the suit schedule properties. The defendants contended that plaintiff Nos.2 and 3 have voluntarily executed the registered sale deed and therefore, after lapse of 9 years, they cannot question a valid transaction and therefore, claimed that they are absolute owners and in lawful possession. On these set of defences, defendants sought for dismissal of the suit.

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The plaintiffs and defendants to substantiate their respective claims let in oral and documentary evidence. The plaintiffs to substantiate their claim that they were minors as on the alleged date of alienation, examined a Radiologist as PW.3. The defendants to refute the claim of plaintiffs that they are minors and also to counter the allegation that sale

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deed is a fraudulent document sought finger print expert's opinion on the signatures found in the sale deed dated 17.09.1986 vide Ex.D-17.

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Though trial Court found that the finger print expert's opinion clearly indicates that the signatures found on registered sale deed vide Ex.D-17 is that of plaintiff Nos.2 and 3, however, placing reliance on the evidence of PW.3 coupled with the age certificate issued by PW.3 vide Ex.P-11 proceeded to hold that plaintiffs were minors when the alleged transaction took place and therefore, proceeded to declare the sale deed dated 17.09.1986 as concocted and a void document. Accordingly, answered issue No.1 in the affirmative. While answering issue No.1 in the affirmative, trial Court further held that defendants have failed to prove that plaintiff Nos.2 and 3 have sold the suit lands for a valuable consideration of Rs.5,000/- under registered sale deed dated 17.09.1986. Additional issue No.1 was answered in the affirmative. While answering additional issue No.1 in

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the affirmative, trial Court also recorded a finding that plaintiffs have succeeded in proving that defendants dispossessed the plaintiffs by force on 21.02.2001 and therefore, proceeded to decree the suit declaring plaintiffs as absolute owners and consequently, directed the defendants to handover possession.

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Feeling aggrieved by the judgment and decree of

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the trial Court, the defendants preferred appeal before the Appellate Court.

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The Appellate Court on reassessing the evidence on record, was also of the view that the evidence let in by plaintiffs that plaintiff Nos.2 and 3 were minors as on the date

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of alienation and therefore, proceeded to hold that the transaction is a void document and therefore, the said sale in favour of defendant Nos.1 and 2 will not convey any title. The Appellate Court on reassessing the entire evidence on record proceeded to concur with the findings of the trial Court.

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Appellate Court has also placed reliance on the age certificate issued by PW.3 vide Ex.P-11. Referring to Ex.P-11, Appellate Court has also found that plaintiff Nos.2 and 3 were found to be minors as on 17.09.1986 and therefore, held that if plaintiff Nos.2 and 3 had not attained the age of majority, they were not competent to enter into a contract and alienate the property in question. Consequently appeal is dismissed.

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These concurrent findings are under challenge at the instance of the defendants.

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This Court vide order dated 20.09.2010 was pleased to admit the appeal on the following substantial question of law:

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"Whether the evidence on record was sufficient to hold that the respondents herein were minors as on the date of the execution of the sale deed dated 17.09.1986, which was disputed?"

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Heard the learned counsel appearing for defendant

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Nos.1 and 2. There is no contest by the plaintiffs.

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The plaintiffs have approached the Court by

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contending that they were minors and therefore, they were not competent to alienate the property and therefore, a specific stand is taken by the plaintiffs that the sale deed dated 17.09.1986 vide Ex.D-17 is a concocted document. The plaintiffs main reliance is on the fact that they were minors on the alleged date of execution of sale deed i.e., 17.09.1986. To substantiate the said fact that they were minors as on the date of alienation, plaintiffs have placed heavy reliance on Ex.P-11 which is the age certificate issued by PW.3. On perusal of Ex.P-11, this Court would find that the said document does not indicate on what date plaintiff No.2 was examined by PW.3 who claims to be a Radiologist. His evidence in cross-examination would clinch the credibility of PW.3 and would also assist the Court in examining the evidentiary value of Ex.P-11. The relevant portion of crossexamination would be useful for this Court and the same is culled out as under:

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"¤.¦.11 gÀ°è 'C¨ÉÆÃmï' ªÀÄvÀÄÛ '21' §gÉzÀ ¸ÀÜ¼ÀzÀ°è NªÀgï gÉÊnAUï DVzÉ J£ÀÄßªÀÅzÀÄ ¤d. ¸ÀASÉå.21 gÀ°è 2 JA§ ¸ÀASÉåAiÀÄ£ÀÄß NªÀgï gÉÊnAUï DVzÉ J£ÀÄßªÀÅzÀÄ ¤d. £Á£ÀÄ ¥ÀjÃQë¹zÁUÀ ºÀ£ÀÄªÀÄPÀÌ½UÉ PÀ¤µÀÖ ¥ÀPÀë 21 ªÀµÀð DVvÀÄÛ. D ªÀÄÆ¼É PÀÆrPÉÆAqÀÄ JµÀÄÖ ªÀµÀðªÁVzÉ JAzÀÄ ºÉÃ¼À®Ä ¸ÁzsÀå«®è. ZÀªÀÄðzÀ, ºÉÆgÀV£À ZÀºÀgÉ ªÀÄvÀÄÛ ¨É¼ÀªÀtÂUÉ EªÀÅUÀ¼À DzsÁgÀzÀ ªÉÄÃ°AzÀ ªÀAiÀÄ¸Àì£ÀÄß CAzÁf£À ªÉÄÃ¯É ºÉÃ¼À§ºÀÄzÉÃ ºÉÆgÀvÀÄ ¤RgÀªÁV ¸ÁzsÀå«®è."

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After going through the cross-examination of PW.3, this Court would find that both the Courts have not properly appreciated the slender evidence which is placed on record by plaintiff Nos.2 and 3 to demonstrate that they were minors when the alleged sale deed was executed in favour of defendant Nos.1 and 2. PW.3 has admitted in crossexamination that Ex.P-11 does not bear the date. He has also admitted that his certificate does not indicate or refers to the bones which were examined to ascertain the age of plaintiff No.2. He has also admitted in unequivocal terms that the wordings "about 21 years" indicated in certificate is over written. He has also admitted that he is not in a position to

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tell as to when the bones were united. Therefore, if this slender evidence is looked into, I am of the view that there is no proper appreciation of evidence. This Court is of the view that the finding of both the Courts that plaintiff Nos.2 and 3 were found to be minors as on the date of execution of sale deed suffers from serious perversity. The concurrent finding of fact recorded by both the Courts suffers from serious infirmities.

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Though a Radiologist is competent to assess the age by carrying out bone ossification test which enables the Radiologist to determine the age based on the degree of fusion of bone by taking X-ray of few bones, however, this common method used for calculation of bone age is found to be effective only if it is done below the age of 18 years. Any test done by a Radiologist beyond the age of 18 years is not found to be effective. If the tests are done after completion of 18 years as the elongation of bone is completed after adolescence, the ossification test varies slightly based on

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individual characteristics. Therefore, the ossification test though is relevant, however, it cannot be held to be conclusive proof.

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It is in this background, this Court is not inclined to accept the oral evidence of PW.3 coupled with the age certificate issued by PW.3 vide Ex.P-11. If the bone ossification test done after 18 years is not completely reliable, I am of the view that it does not hold good after a minor crosses a certain age. The evidentiary value to the certificate issued by PW.3 vide Ex.P-11 has to be dealt in the manner in which it is dealt by the opinion of an expert under Section 45 of Indian Evidence Act. The Hon'ble Apex Court in the case of

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Ramdeo Chauhan vs. State of Assam¹ held as under:

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"The statement of the doctor is no more than an opinion, the court has to base its conclusions upon all the facts and circumstances disclosed on examining of the physical features of the person whose age is in question….In this vast country with varied latitudes,

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1 AIR 2001 SCW 2159

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heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform."

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In Vishnu vs. State of Maharashtra² , the Court

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clarified further that the ossification test by the medical officer is to assist the Court which falls under the ambit of medical experts opinion which is obviously advisory in nature and not binding on the Court. Therefore, the age certificate issued by PW.3 could not have been relied on as the certificate does not even indicate on what date plaintiff No.2 was examined by PW.3 and therefore, the said certificate is not conclusive for age determination of plaintiff No.2. The courts in India have also observed in Ram Suresh Singh vs. Prabhat Singh³ and Jyoti Prakash Rai vs. State of Bihar⁴ that the ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological

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2 (2006) 1 SCC 283

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3 (2009) 6 SCC 681

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4 (2008) 15 SCC 223

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examination leaves a margin of two years on either side of the age range as prescribed by the test.

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In a country, such as India, documentary proof of age may not always be present with the litigant owing to multitude of reasons. If the certificate does not indicate as to when this test was carried out coupled with several admissions elicited in cross-examination of PW.3, the concurrent findings recorded by both the Courts in holding that plaintiff Nos.2 and 3 were found to be minors as on the date of alienation is patently erroneous and the same suffers from perversity.

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One more significant detail which is lost sight of by both the Courts is that oral evidence of PW.1 falls short of proof of the allegations averred in the plaint that plaintiff Nos.2 and 3 were found to be minors. Plaintiff No.1 who is the father has not chosen to prosecute the suit. While serious allegations of forgery and concoction are alleged by plaintiff Nos.2 and 3, they have not chosen to mount the witness box

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to substantiate the said allegations. On the contrary, plaintiff Nos.2 and 3 have chosen to prosecute the suit through a GPA holder who is found to be totally incompetent to depose on behalf of plaintiff Nos.2 and 3. The GPA holder is not party to the sale deed dated 17.09.1986 vide Ex.D-17. Therefore, both the Courts ought to have taken cognizance of these significant details and ought to have drawn an adverse inference against plaintiff Nos.2 and 3 for having not stepped into the witness box.

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The next question which also needs consideration at the hands of this Court is, whether both the Courts erred in granting relief of declaration of ownership when plaintiffs have not questioned the sale deed and no relief is sought questioning the registered sale deed dated 17.09.1986. If there is slender evidence to substantiate the claim of plaintiffs that they were minors as on the date of transaction, the finger print expert's opinion which leans towards defendant Nos.1 and 2 since the report clearly indicates that the specimen

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signatures found on the admitted document and disputed document are almost identical, then it becomes incumbent on the part of plaintiff Nos.2 and 3 who ought to have questioned a voidable sale transaction. If the signatures of plaintiff Nos.2 and 3 on the sale deed tally, then what the Courts have not taken into consideration is that the plaintiff Nos.2 and 3 to succeed in the present suit ought to have challenged the sale deed vide Ex.D-17. Unless this registered sale deed is set aside by a competent Court, the defendants title over the suit land based on registered sale deed remains intact.

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It is only where a document incorporated is found to be a void transaction, it does not require cancellation to take away the legal effect of the same; but if the transaction is found to be voidable, cancellation is necessary to take away the legal effect of the document. The Courts were also required to examine the nature of relief sought in the present case on hand which is equally important to determine the question of limitation. In the present case on hand having

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regard to the nature of relief sought, the plaintiff Nos.2 and 3 ought to have sought for cancellation as the evidence on record clearly indicates that they are found to be party to the registered sale deed and it is at their instance, the properties are conveyed to defendant Nos.1 and 2 under registered sale deed. Therefore, unless plaintiff Nos.2 and 3 had expressly prayed for cancellation of sale deed on the ground that there is forgery and concoction, both the Courts erred in granting relief of declaration in favour of plaintiffs.

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Though it is more than a trite that the Court may declare an instrument void without a prayer for cancellation and may grant appropriate reliefs, but in the present case on hand, in view of finger print expert's opinion coming to the aid of defendant Nos.1 and 2, the fact that there is not even a slender evidence let in by the plaintiffs to substantiate that they were minors as on the date of execution of sale deed, both the Courts erred in entertaining the present suit where plaintiff Nos.2 and 3 have simply sought relief of declaration

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that they are the owners and consequently, they have sought possession from defendant Nos.1 and 2.

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Therefore, the substantial question of law framed by this Court has to be answered in the negative and against the plaintiffs. The evidence on record is found to be not sufficient to hold that plaintiffs were minors as on the date of execution of sale deed on 17.09.1986. On the contrary, the rebuttal evidence clearly indicates that defendant Nos.1 and 2 have acquired valid right and title pursuant to registered sale deed executed by plaintiff Nos.2 and 3. Plaintiff Nos.2 and 3 have not chosen to participate in the suit and therefore, an adverse inference has to be drawn against plaintiff Nos.2 and 3 under Section 114(G) of Indian Evidence Act. Therefore, the concurrent findings recorded by the Courts below is not sustainable. Having answered substantial question of law in the negative and against plaintiffs, this Court is of the view that the suit instituted by plaintiff Nos.2 and 3 has to fail.

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For the foregoing reasons, I pass the following:

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ORDER

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(i) The second appeal is allowed; (ii) The judgment and decree dated 07.12.2009 passed in R.A.No.16/2006 by the Appellate Court confirming the judgment and decree dated 28.02.2006 passed in O.S.No.132/1995 is set aside. Consequently, suit is dismissed;

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(iii) The pending interlocutory applications, if any, do not survive for consideration and stand disposed of.

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Sd/JUDGE

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Rudrappa S/O Sri Badagi Thippaiah v. Hanumakka W/O Sri Eranna

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Rudrappa S/O Sri Badagi Thippaiah v. Hanumakka W/O Sri Eranna

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