Dismissed

Guddahalappa v. Muniswamy Reddy

Karnataka HC2 Nov 2023RSA/823/2007

Case brief

AI extract

What is this about?

In this regular second appeal, the High Court of Karnataka dismissed the appeal and confirmed the first appellate court decree regarding redemption of a mortgage on joint family property. The court held the first appellate court correctly moulded relief, granting redemption for the remaining 7 guntas after 10 guntas were sold to the respondent, despite evidence suggesting beneficial partition.

What did the court decide?

The appeal was dismissed and the judgment and decree of the First Appellate Court confirming redemption of 7 guntas were confirmed.

Guddahalappa Vs Muniswamy Reddy — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:39243 RSA No. 823 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 823 OF 2007 (RES)

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BETWEEN:

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GUDDAHALAPPA S/O LINGAIAH SINCE DEAD BY HIS LR'S

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1(A) GOVINDAMMA W/O LATE GUDDAHALAPPA AGED ABOUT 60 YEARS

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1(B) RAMALINGAIAH B.G. S/O LATE GUDDAHALAPPA AGED ABOUT 45 YEARS

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Digitally signed by R DEEPA Location: High Court of Karnataka

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1(C) SMT. VINODA D/O LATE GUDDAHALAPPA AGED ABOUT 42 YEARS

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1(D) NAGARAJ B.G. S/O LATE GUDDAHALAPPA AGED ABOUT 40 YEARS

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1(E) JAYAPAL B.G. S/O LATE GUDDAHALAPPA AGED ABOUT 35 YEARS

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1(F) SMT. SHANTHA B.G. D/O LATE GUDDAHALAPPA AGED ABOUT 30 YEARS

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2 - NC: 2023:KHC:39243 RSA No. 823 of 2007

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ALL ARE R/AT BALAGARANAHALLI VILLAGE NERALURU POST, ATTIBELE HOBLI ANEKAL TALUK, BANGALORE DISTRICT – 562 106.

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…APPELLANTS

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(BY SRI. RAKSHITH K N., ADVOCATE FOR A1(A,B) SMT. VIDYA S., ADVOCATE FOR A1(C,D,E & F)

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AND:

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MUNISWAMY REDDY S/O JAVARAPPA, SINCE DEAD BY HIS LR'S

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1(A) KRISHNA REDDY S/O LATE MUNISWAMY REDDY AGED ABOUT 60 YEARS

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1(B) NARAYANA REDDY SINCE DEAD BY LR'S

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1(B)(a) YASHODAMMA W/O LATE NARAYANA REDDY AGED ABOUT 50 YEARS

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1(B)(b) NAVEEN S/O LATE NARAYANA REDDY AGED ABOUT 35 YEARS

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1(B)(c) NANDISH S/O LATE NARAYANA REDDY AGED ABOUT 32 YEARS

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ALL ARE R/AT, BALAGARANAHALLI VILLAGE NERALURU POST, ATTIBELE HOBLI ANEKAL TALUK, BENGALURU

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…RESPONDENTS

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(BY SRI. V M LAKSHMIPATHI, ADVOCATE FOR R1(A) [R1(B)(a,b,c)] ARE SERVED)

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3 - NC: 2023:KHC:39243 RSA No. 823 of 2007

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THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 31.01.2007 PASSED IN RA.NO.175/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND JMFC., ANEKAL, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 16.11.2005 PASSED IN OS.NO.398/1990 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) AND JMFC., ANEKAL.

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

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JUDGMENT

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This second appeal is filed by the appellant challenging the judgment and decree dated 31.01.2007, passed in R.A.No.175/2006 (Old No.393/2005) by the Civil

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Judge (Sr.Dn.) & JMFC, Anekal, and the judgment and decree dated 16.11.2005, passed in O.S.No.398/1990 by the Principal Judge (Jr.Dn.), Anekal.

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For the sake of convenience, parties are referred

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to as per their ranking before the trial Court. The appellant is the plaintiff and respondent is the defendant.

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The brief facts leading rise to filing of this appeal are as under:

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NC: 2023:KHC:39243 RSA No. 823 of 2007

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Plaintiff filed a suit for redemption of mortgage directing the defendants to receive mortgage money of Rs.1,000/- and to execute due discharge shara by putting plaintiff in actual physical possession of the suit schedule property. In case the defendant do not come forward to execute the discharge shara as prayed above, the Court by itself execute such shara on his behalf including the cost. It is the case of the plaintiff that on 08.01.1968, plaintiff's elder brother by name Basavalingaiah had mortgaged the suit land bearing Sy.No.49 of Ichengur Village for mortgage amount of Rs.1,000/- by executing usufructuary mortgage deed which was registered on 08.01.1968. It is contended that the suit schedule property is the joint family property which was undivided as on the date of execution of mortgage deed. One of the conditions stipulated in the mortgage deed is that the mortgager is entitled to redeem the schedule property after the expiry of 8 years from the date of execution of mortgage deed. As such, the plaintiff is entitled to redemption of entire suit schedule property on his own

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5 - NC: 2023:KHC:39243 RSA No. 823 of 2007

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right who is having undivided interest. The plaintiff approached the defendant and requested to receive the mortgage money and redeem in favour of the plaintiff by executing the discharge shara. The defendant went on dodging on one reason or the other. Plaintiff was constrained to issue legal notice on 06.11.1990. The defendant did not reply the legal notice. Hence cause of action arose for the plaintiff to file the suit for redemption.

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Defendant filed written statement denying the allegations made in the plaint. It is admitted that the suit schedule property was a joint family property as on the date of execution of mortgage deed on 08.01.1968. It is denied that the defendant refused to redeem the same in favour of the plaintiff. Receipt of legal notice is admitted by the defendant. It is contended that one Lingaiah was the propositor and he had 5 sons, namely, Basavalingaiah, Muniyappa @ Siddappa, Guddahalappa, Madayya and Narayanappa and the suit schedule property was the ancestral and joint family property of the plaintiff and his

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brothers. When it was in a joint status, the first son of Basavalingaiah being the eldest member of the joint family was in need of money to meet out the family necessity and hence mortgaged the schedule property for Rs.1,000/to the defendant under registered mortgage deed dated 08.01.1968. The said mortgage deed was attested by the plaintiff and his brother and possession was handed over to the defendant. The defendant is in possession and enjoyment of the schedule property. Subsequently there was partition in between the plaintiff and his brothers in respect of their joint family properties. In the said partition, the suit schedule property was fallen to the share of Muniyappa @ Siddappa, Madaiah and Narayanappa. As such, the said 3 persons have sold the schedule property in favour of the defendant under registered sale deed dated 15.07.1978. The defendant is in possession of the suit schedule property as owner by virtue of registered sale deed dated 15.07.1978. Further the defendant is in possession and enjoyment of the suit schedule property for more than 12 years without any

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7 - NC: 2023:KHC:39243 RSA No. 823 of 2007

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interruption or obstruction by the plaintiff. Hence the defendant has perfected his title by way of adverse possession. On these grounds sought for dismissal of the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiff proves that on 8.1.1968 his brother Basavalingaiah mortgaged the suit land for Rs.1,000.00?

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1. Whether the plaintiff is entitled for redemption of mortgage and also possession of the suit property from defendant?

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1. Whether order or decree?

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In order to prove the case of the plaintiff, the plaintiff examined himself as PW-1 and marked 6 documents as Exs.P1 to P6. Defendant examined himself as DW-1 and got examined one witness as DW-2 and marked 9 documents as Exs.D1 to D9. The trial Court after considering the oral and documentary evidence of the parties, decreed the suit in part vide judgment dated 11.03.1998. It is ordered and decreed by directing the

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8 - NC: 2023:KHC:39243 RSA No. 823 of 2007

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defendant to execute the redemption of mortgage deed in favour of the plaintiff in respect of 7 guntas in the suit survey number. The claim of the plaintiff was in respect of 17 guntas, but the trial Court decreed the suit in respect of 7 guntas and declined to grant the relief in respect of remaining portion of land. Plaintiff aggrieved by the judgment passed by the trial Court, preferred an appeal in R.A.No.89/1998 which came to be allowed vide judgment dated 01.03.2005 and set aside the judgment and decree dated 11.03.1998, and remitted the matter to the trial Court reserving liberty to the parties to lead additional evidence in respect of partition dated 02.06.1970, and with a direction to dispose of the suit afresh. After the receipt of notice, the plaintiff got himself further examined as PW-1 and examined two witnesses as PW-2 and PW-3. The trial Court after considering the oral and documentary evidence, answered issue Nos.1 and 2 in negative and consequently dismissed the suit of the plaintiff vide judgment dated 16.11.2005.

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9 - NC: 2023:KHC:39243 RSA No. 823 of 2007

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The plaintiff aggrieved by the judgment and decree dated 16.11.2005, passed in the above said suit, filed an appeal in R.A.No.175/2006 (Old No.393/2005). The First Appellate Court, after hearing the parties, has framed the following points for consideration:

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1) Whether the trial Court has failed to appreciate the evidence on record in a proper manner?

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2) Whether the judgment and decree dated 16.11.2005, passed by the Principal Civil Judge (Jr.Dn.) & JMFC, Anekal in O.S.No.398/90 is against law and is liable to be set aside by interference of this Court?

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3) What order?

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The First Appellate Court, on re-appreciating the oral and documentary evidence, answered points No.1 and 2 partly in affirmative and consequently allowed the appeal in part and the judgment and decree passed by the trial Court is confirmed only in respect of 10 guntas which was sold in favour of the defendant under registered sale deed vide Ex.D2 and the judgment and decree in respect of the remaining 7 guntas was set aside and the suit of the

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10 - NC: 2023:KHC:39243 RSA No. 823 of 2007

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plaintiff was partly decreed. It is ordered and decreed that the defendant is directed to execute a redemption of mortgage deed in favour of the plaintiff in respect of 7 guntas of suit survey number excluding the portion which was sold in favour of the defendant through registered sale deed Ex.D2, after receiving necessary mortgage amount from the plaintiff and deliver the possession of the portion of 7 guntas in favour of the plaintiff. The plaintiff, aggrieved by the dismissal of the suit in respect of 10 guntas, preferred this second appeal.

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This Court admitted the appeal on the following substantial question of law :

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"Whether the Appellate Court was justified in granting decree only in respect of 7 guntas of land, instead of 17 guntas of land, on the ground 10 guntas of land has been sold in favour of the respondent by the brothers of the appellant?"

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Heard learned counsel for the parties.

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11 - NC: 2023:KHC:39243 RSA No. 823 of 2007

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Learned counsel for the plaintiff submits that suit schedule property is the joint family property of the plaintiff and his brothers. She submits that the said property was mortgaged by his elder brother namely Basavalingaiah and there is no partition between the plaintiff and his brothers. The three brothers of the plaintiff sold their interest in the suit schedule property in favour of defendant under registered sale deed. The Appellate Court moulded relief and she on instruction submits that judgment of the Appellate Court moulding relief is appropriate. Hence prays to dispose of the appeal.

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Per contra, learned counsel for the defendant submits that the elder brother of the plaintiff executed a registered mortgage deed in favour of the defendant and he further submits that there was a partition between the plaintiff and his brothers. In the said partition, the suit schedule property was fallen to the share of the brothers of plaintiff namely Muniyappa @ Siddappa, Madaiah and

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12 - NC: 2023:KHC:39243 RSA No. 823 of 2007

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Narayanappa. He submits that the brothers of the plaintiff have sold the suit land in favour of the defendant for valid consideration under registered sale deed dated 15.07.1978. He submits that by virtue of the said registered sale deed, defendant became the absolute owner of the suit schedule property. He further submits that the defendant is in possession of the suit schedule property for more than 12 years without any interruption. Hence he submits that the defendant has acquired his title by way of adverse possession. Hence he submits that the First Appellate Court was justified in passing the impugned

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judgment.

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Perused the records and considered the submissions of learned counsel for the parties.

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SUBSTANTIAL QUESTION OF LAW : The plaintiff got

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examined himself as PW-1. He has deposed that the suit schedule property is the ancestral property of the plaintiff. It is contended that there is no partition between the plaintiff and his brothers. The elder brother of the plaintiff

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13 - NC: 2023:KHC:39243 RSA No. 823 of 2007

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by name Basavalingaiah mortgaged the suit schedule property in favour of the defendant under registered mortgage deed dated 08.01.1968, for an amount of Rs.1,000/- and it was agreed that the said mortgage has to be redeemed within 8 years from the date of execution of mortgage deed. Further, possession was delivered in favour of the defendant. Plaintiff approached the defendant and requested to receive the mortgage money, but the defendant refused to execute the discharge shara. Plaintiff got issued legal notice on 06.11.1990. The said notice was served on the defendant. But the defendant neither replied the legal notice nor executed the discharge shara. The plaintiff has produced documents in support of his case. Ex.P1 is the certified copy of the mortgage deed executed by Basavalingaiah in favour of the defendant in respect of the suit schedule property; Ex.P2 is the ROR in respect of the suit schedule property; Ex.P3 is the index in respect of suit land; Ex.P4 is the legal notice issued by the plaintiff to the defendant calling upon the defendant to receive the mortgage money and execute postal shara;

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NC: 2023:KHC:39243 RSA No. 823 of 2007

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Ex.P5 is the RTC extract in respect of the suit land; Ex.P6

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is the land revenue receipt. In the course of crossexamination, it is suggested to pw-1 that there was partition between the plaintiff and his brothers and in the said partition, the schedule property was fallen to the share of his brothers who have sold the said land in favour

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of the defendant. The said suggestion was denied by the plaintiff. Further the plaintiff examined two witnesses who have deposed that the suit land is the joint family property of plaintiff and his brothers and the elder brother of plaintiff mortgaged the suit schedule property in favour of the defendant for mortgage amount of Rs.1,000/- and deposed that there was no partition between the plaintiff and defendant. The plaintiff has examined 2 witnesses in order to prove the partition between the plaintiff and his brothers and marked Ex.P7 memorandum of partition. The plaintiff has not proved that entire suit property was fell to his share. Thus the plaintiff has failed to prove partition as per Ex.P7. Ex.P7 was not confronted to PW2 & PW3 to identify their signatures.

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NC: 2023:KHC:39243 RSA No. 823 of 2007

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The defendant has contended that he had purchased the property under the registered sale deeds from Madaiah, Siddappa and Narayanappa and the defendant has produced the sale deeds marked as Exs.D.1 and 2. The plaintiff has not challenged the registered sale deed executed by his brothers in favour of the defendant.

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Admittedly, the First Appellate Court has recorded a finding that the defendant has not become the absolute owner of the entire extent of property, but became the owner only to the extent of 10 guntas which he had purchased from 3 brothers of the plaintiff and still the remaining 7 guntas of suit schedule property which is in possession of the defendant is subject to redemption and further recorded that, if it is believed that there is no partition between the plaintiff and his brothers, it can be said that the plaintiff is entitled to get redemption in respect of his share. Further, if it is believed that there is a partition, the evidence on record shows that three brothers of the plaintiff sold their share of 10 guntas in the suit property and another brother Basavalingaiah and his

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NC: 2023:KHC:39243 RSA No. 823 of 2007

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legal heirs are not claiming any share in the suit schedule property and held that plaintiff is entitled to get redemption of mortgage in respect of remaining 7 guntas.

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Admittedly, three brothers of plaintiff have executed the registered sale deed as per Ex.D1 & D2 in respect of portion of suit schedule property measuring 10 guntas. The defendant has not purchased the entire suit land. The plaintiff is entitle to get redeem the remaining portion i.e., 7 guntas of suit land. The plaintiff has not challenged the registered sale deeds executed by his three brothers in favour of defendant. As observed above the entire suit land measures 17 guntas. If notional partition takes between the plaintiff and his brothers, the plaintiff would get approximately 4 guntas of land, but the appellate Court has observed that plaintiff is entitle to get redemption of the mortgage in respect of remaining 7 guntas. By virtue of the impugned judgment, the plaintiff is getting more extent of land than what he is entitle for in a partition. The Appellate Court instead of relating the

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NC: 2023:KHC:39243 RSA No. 823 of 2007

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parties to file one more suit for partition, has moulded relief under Order VII Rule 7 of Code of Civil Procedure.

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The Appellate Court has observed that mortgagor and his legal representatives are not claiming any share in the suit property. The Appellate Court was justified in passing the impugned judgment. Again the learned counsel for the plaintiff on instruction submits the appellate Court has protected the interest of plaintiff and rightly passed judgment and the same may be confirmed. In view of the above discussion, I do not find any grounds to interfere with the impugned judgments and decrees. Accordingly, I answer substantial question in the affirmative.

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Accordingly, I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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The judgment and decree passed by the First Appellate Court in R.A. No.175/2006 is hereby confirmed.

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NC: 2023:KHC:39243 RSA No. 823 of 2007

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No order as to the costs.

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In view of disposal of the appeal, pending I.As., if any, do not survive for consideration and are accordingly disposed of.

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Sd/JUDGE

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RD,SKS

Guddahalappa v. Muniswamy Reddy

Case brief

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Guddahalappa v. Muniswamy Reddy

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