Allowed

Murali Gopal v. v P Vishalakshi

Karnataka HC15 Nov 2023RSA/856/2007

Case brief

AI extract

What is this about?

The High Court allowed the second appeals, setting aside the judgments of the lower courts. It held that the plaintiffs are entitled to 1/8th share each in the joint family property, as the sale deed executed by co-sharers did not bind the plaintiffs. The purchaser failed to prove legal necessity.

What did the court decide?

The judgments and decrees of the lower courts are set aside. The suit is decreed in part: each plaintiff is entitled to a 1/8th share in the suit schedule property and mesne profits from the date of s

Murali Gopal Vs v P Vishalakshi — Partition | Karnataka HC (2023)

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NC: 2023:KHC:45465 RSA No. 856 of 2007 C/W RSA No. 1183 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH 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. 856 OF 2007 (PAR) C/W

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REGULAR SECOND APPEAL NO. 1183 OF 2007

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IN RSA 856 OF 2007

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BETWEEN:

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MURALI GOPAL S/O LATE V K PARTHASARATHI MUDALIAR AGED ABOUT 28 YEARS R/O C/O PUTTABYRAIAH, OPP: JUNIOR COLLEGE ADI CHUNCHANAGIRI EXTENSION RAMANAGARAM, BANGALORE RURAL DISTRICT – 571 511.

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Digitally signed by R DEEPA Location: High Court of Karnataka

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SHANTHI W/O LATE V R RAGHURAM, SINCE DEAD BY LR'S

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2A. SRI. JETHENDRA V.R. AGED ABOUT 28 YEARS S/O LATE V.R. RAGHURAM AND SHANTHI

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2B. SRI. RANJITH V.R. AGED ABOUT 27 YEARS S/O LATE V.R. RAGHURAM AND SHANTHI

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BOTH ARE R/AT No.10/G, M.G. ROAD RAMANAGARAM – 562 159.

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…APPELLANTS

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(BY SRI. C SHANKAR REDDY, ADVOCATE)

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NC: 2023:KHC:45465 RSA No. 856 of 2007 C/W RSA No. 1183 of 2007

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AND:

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V P VISHALAKSHI W/O LATE V K PARTHASARATHI MUDALIAR

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SINCE DEAD BY HER LR'S

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V P NANDAGOPAL S/O V K PARTHASARATHI MUDALIAR AGED ABOUT 55 YEARS

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V P MADANGOPAL S/O LATE V K PARTHASARATHI MUDALIAR AGED ABOUT 53 YEARS

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V P ANANDAGOPAL S/O LATE V K PARTHASARATHI MUDALIAR SINCE DEAD BY HIS LR'S

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4A SMT. SAVITHRI W/O LATE V P ANANDA GOPAL AGED ABOUT 53 YEARS R/AT No.10/D, M.G. ROAD RAMANAGARAM - 562 159

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4B SMT ARATHI D/O LATE V.P. ANANDA GOPAL W/O SHIVA KUMAR AGED ABOUT 35 YEARS

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4C SMT. ARCHANA D/O LATE V.P. ANANDA GOPAL W/O SRI SOMU AGED ABOUT 33 YEARS

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RESPONDENT Nos.4B AND 4C ARE R/AT No.10/G, M.G. ROAD RAMANAGARAM – 562 159

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V P RAMESH SINCE DEAD BY HIS LR'S

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5A SMT. R. GAYATRI W/O LATE V.P. RAMESH, AGED ABOUT 48 YEARS

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5B SRI. MADHU R D/O LATE V.P. RAMESH, AGED ABOUT 27 YEARS

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5C SMT. AKSHAYA R (SHAKTHI R) D/O LATE V.P. RAMESH, AGED ABOUT 20 YEARS

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5D SMT. AKSHITHA R D/O LATE V.P. RAMESH, AGED ABOUT 19 YEARS

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RESPONDENT Nos. 5 (A-D) ARE R/AT No.254/3188/2960, 4^TH CROSS WARD No.6, CHAMUNDESHWARI EXTENSION RAMANAGARA – 562 159

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RESPONDENTS 1 - 3 ARE MAJORS, R/O DOOR No.10, M.G. ROAD MUDALIAR STREET, RAMANAGARAM BANGALORE DISTRICT – 571 511.

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JANAB H MOHAMED GHOUSE S/O LATE MOHAMAD HYDER SAB SINCE DEAD BY LR'S

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6A. SHAWAR BEGUM @ FAIZUNNISSA W/O LATE H. MOHAMMED GHOUSE, AGED 60 YEARS

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6B. MOHAMMED JAVEED S/O LATE H MOHAMMED GHOUSE, AGED 42 YEARS

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6C. MOHAMMED GAYAZ S/O LATE H MOHAMMED GHOUSE, AGED 39 YEARS

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6D. MOHAMMED NAFIZ S/O LATE H MOHAMMED GHOUSE, AGED 38 YEARS

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6E. FARJAN AKTHAR S/O LATE H MOHAMMED GHOUSE, AGED 37 YEARS

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6F. SHABANA D/O LATE H MOHAMMED GHOUSE, AGED 36 YEARS

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* Page Nos.3 to 8 are retyped and replaced vide Court order dated 19.01.2024.

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6G. YASMIN TAJ

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D/O LATE H MOHAMMED GHOUSE, AGED 34 YEARS

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RESPONDENTS 6(A-G) ARE MAJORS R/AT MADARKHAN MOHALLA, RAMANAGARAM TOWN.

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R UMA DEVI R/O LATE V K PARTHASARATHI MUDALIAR, MAJOR, AGED ABOUT 60 YEARS R/O AT C/O PUTTABYRAIAH, OPP: JUNIOR COLLEGE, ADI CHUNCHANAGIRI EXTENSION, RAMANGARAM BANGALORE RURAL DISTRICT – 571 511.

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SMT. PUTTAMMA W/O LATE SRI. KRISHNAPPA AGED ABOU 63 YEARS, R/O KOTHIPURA, KASABA HOBLI, RAMANGARA TALUK, BANGALORE RURAL DISTRICT- 571 511

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SRI. RAMESH S/O SRI. DODDAIAH @ PUTTASWAMAIAH AGED ABOUT 40 YEARS, R/O VINAYAKA NAGAR RAMANAGARA TOWN, B.M. ROAD RAMANAGARA TALUK

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BANGALORE RURAL DISTRICT – 571 511

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SRI. RIYAZ AHMED S/O ABDUL QUDUS, AGED ABOUT 40 YEARS R/O HOUSE No.45/33, RAMANAGARA TOWN MOTHER KHAN MOHALLA BANGALORE RURAL DISTRICT – 571 511

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SRI. T. SHANKAR S/O CHIKKA THIMMEGOWDA AGED ABOUT 48 YEARS, R/O No.65, VANIVILAS -ROAD, BASAVANAGUDI, BANGALORE – 04.

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…RESPONDENTS

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(BY SRI. PRASHANTH S H., ADVOCATE FOR R11 SMT. B.N. SUDHA, ADVOCATE FOR C/R6(A-G) SRI. K.R. ANANTHA MURTHY, ADVOCATE FOR C/R6(A-G) R9, R10 ARE SERVED V/O DATED 13.07.2017 1^ST APPELLANT, R2, R3, R5 & R7 ARE LR'S OF DECEASED R1

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R4(A) TO (C), R5 (A TO D), R8, V/O DATED 09.01.2023 NOTICE TO R2, R3 & R5 IS H/S V/O DATED 09.01.2023 NO PURPOSE WILL BE SERVED IN ISSUING NOTICE TO R7)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 27.2.2007 PASSED IN R.A.NO.15/2002 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, BANGALORE RURAL DIST, BANGALORE, DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DATED 26.2.2002 PASSED IN OS.NO. 2/1992 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & JMFC, RAMANAGARAM.

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IN RSA 1183 OF 2007 BETWEEN:

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R UMA DEVI W/O LATE V.K.PARTHASARATHI MUDALIAR, AGED ABOUT 60 YEARS, R/O AT C/O PUTTBYRAIAH, OPP.JUNIOR COLELGE ADICHUNCHANAGIRI EXTENSION, RAMANGARAM, BANGALORE RURAL DISTRICT – 571 511

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...APPELLANT

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(BY SRI. C SHANKAR REDDY, ADVOCATE)

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AND :

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1 . SHAWAR BEGUM @ FAIZUNNISSA W/O LATE H. MOHAMMED GHOUSE, AGED 60 YEARS

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2 . MOHAMMED JAVEED S/O LATE H. MOHAMMED GHOUSE, AGED 42 YEARS

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3 . MOHAMMED GAYAZ S/O LATE H. MOHAMMED GHOUSE, AGED 39 YEARS

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4 . MOHAMMED NAFIZ S/O LATE H. MOHAMMED GHOUSE, AGED 38 YEARS

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5 . FARJAN AKTHAR S/O LATE H MOHAMMED GHOUSE, AGED 37 YEARS

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6 . SHABANA

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D/O LATE H. MOHAMMED GHOUSE, AGED 36 YEARS

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7 . YASMIN TAJ

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D/O LATE H. MOHAMMED GHOUSE, AGED 34 YEARS

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RESPONDENT Nos. 1 TO 7 ARE MAJORS

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R/O MADARKHAN, MOHALLA, RAMANAGARAM TOWN BANGALORE RURAL DISTRICT – 571 511

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8 . MURALI GOPAL S/O LATE V.K. PARTHASARATHI MUDALIAR AGED ABOUT 38 YEARS

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9 . SMT. V P VISHALAKSHI W/O LATE V.K. PARTHASARATHI MUDALIAR SINCE DEAD BY HIS LR'S

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10 . V P NANADAGOPAL

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S/O LATE V.K.PARTHASARATHI MUDALIAR AGED ABOUT 55 YEARS

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11 . V P MADANGOPAL

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S/O LATE V.K.PARTHASARATHI MUDALIAR AGED ABOUT 53 YEARS

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12 . V P ANANDAGOPAL

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S/O LATE V.K. PARTHASARATHI MUDALIAR SINCE DEAD BY HIS LR'S

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12A. SMT. SAVITHRI

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W/O LATE V P ANANDA GOPAL AGED ABOUT 53 YEARS, R/AT No.10/D M.G. ROAD, RAMANAGARAM - 562 159

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12B. SMT ARATHI

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D/O LATE V.P. ANANDA GOPAL

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W/O SHIVA KUMAR, AGED ABOUT 35 YEARS

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12C. SMT. ARCHANA D/O LATE V.P. ANANDA GOPAL W/O SRI SOMU, AGED ABOUT 33 YEARS

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NC: 2023:KHC:45465 RSA No. 856 of 2007 C/W RSA No. 1183 of 2007

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RESPONDENT Nos.12B AND 12C ARE

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R/AT No.10/G, M.G. ROAD, RAMANAGARAM – 562 159

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13 . V P RAMESH

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S/O LATE V.K. PARTHASARATHI MUDALIAR SINCE DEAD BY HIS LR'S

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13A. SMT. R. GAYATRI W/O LATE V.P. RAMESH, AGED ABOUT 48 YEARS,

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13B. SRI. MADHU R D/O LATE V.P. RAMESH, AGED ABOUT 27 YEARS

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13C. SMT. AKSHAYA R (SHAKTHI R) D/O LATE V.P. RAMESH, AGED ABOUT 20 YEARS

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13D. SMT. AKSHITHA R

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D/O LATE V.P. RAMESH, AGED ABOUT 20 YEARS

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RESPONDENT Nos. 13 (A-D) ARE R/AT No.254/3188/2960, 4^TH CROSS WARD No.6, CHAMUNDESHWARI EXTENSION RAMANAGARA – 562 159

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RESPONDENT Nos. 8,10 & 11 ARE MAJORS, R/O DOOR No.10, M.G. ROAD MUDALIAR STREET, RAMANAGARAM BANGALORE DISTRICT – 571 511.

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14 . SMT SHANTHI

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W/O LATE V.R.RAGHURAM, SINCE DEAD BY HER LR'S

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14A. SRI. JETHENDRA V.R. S/O LATE V.R. RAGHURAM AND SHANTHI, AGED ABOUT 28 YEARS

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14B. SRI. RANJITH V.R. S/O LATE V.R. RAGHURAM AND SHANTHI AGED ABOUT 27 YEARS

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BOTH ARE R/AT No.10/G, M.G. ROAD, RAMANAGARAM – 562 159.

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SMT. PUTTAMMA W/O LATE SRI. KRISHNAPPA AGED ABOUT 63 YEARS R/O KOTHIPURA, KASABA HOBLI, RAMANGARA TALUK, BANGALORE RURAL DISTRICT- 571 511

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SRI. RAMESH

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S/O SRI. DODDAIAH @ PUTTASWAMAIAH AGED ABOUT 40 YEARS R/O VINAYAKA NAGAR, RAMANAGARA TOWN B.M. ROAD, RAMANAGARA TALUK BANGALORE RURAL DISTRICT – 571 511

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SRI. RIYAZ AHMED S/O ABDUL QUDUS, AGED ABOUT 40 YEARS R/O HOUSE No.45/33, RAMANAGARA TOWN MOTHER KHAN MOHALLA BANGALORE RURAL DISTRICT – 571 511

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SRI. T. SHANKAR S/O CHIKKA THIMMEGOWDA AGED ABOUT 48 YEARS, R/O No.65, VANIVILAS ROAD BASAVANAGUDI, BANGALORE – 04.

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…RESPONDENTS

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[BY SRI. SHASHI BHUSHAN B S, ADVOCATE FOR R17 SMT. B.N. SUDHA, ADVOCATE FOR C/R1 –R7 R8, R10, R11, R13, R15, R16, R18 ARE SERVED V/O DATED 13.07.2017 APPELLANT R8, R10, R11, R12 & R13 ARE LR'S OF DECEASED R9

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R12(A), R12(B), R12(C) & R14(B) ARE SERVED V/O DATED 20.03.2020 NOTICE TO R14(A) IS HELD SUFFICIENT

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R13(A), R13(B), R13(C) & R13(D) ARE SERVED]

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THIS RSA IS FILED U/S. 100 R/W O 42 R 1 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 27.2.2007 PASSED IN R.A.NO.18/2002 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, BANGALORE RURAL DIST,

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BANGALORE, ALLOWING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DATED 26.2.2002 PASSED IN OS.NO. 2/1992 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & JMFC, RAMANAGARAM.

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THESE APPEALS ARE, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These second appeals are filed by the appellants challenging the common judgment and decree dated 27.02.2007 passed in R.A.Nos.15/2002 and 18/2002 by the Sessions Judge, Fast Track Court-II, Bengaluru Rural District, wherein plaintiff Nos.2 and 3 aggrieved by the judgment and decree dated 26.02.2002 passed in O.S.No.2/1992 filed appeal in R.A.No.15/2022 and defendant No.6 aggrieved by the judgment and decree passed by the trial Court in the aforesaid suit preferred appeal in R.A.No.18/2002. The First Appellate Court vide common judgment and decree dated 27.02.2007 allowed the appeal filed by defendant No.6 and dismissed the appeal filed by plaintiff Nos.2 and 3. Hence, these second appeals.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. In both the appeals, appellants are plaintiffs and defendants are the respondents.

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The brief facts leading rise to filing of thess appeals are as under:

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Plaintiffs filed a suit for partition and separate possession by metes and bounds and for mesne profits. It is the case of the plaintiffs that, plaintiffs and defendant Nos.2 to 5 are the children of Late V.K.Parthasarathy Mudaliar and defendant No.1 is the mother of plaintiffs and wife of Late. V.K.Parthasarathy Mudaliar. The plaintiffs and defendant Nos.1 to 5 constituted a Hindu undivided joint family. Each of the plaintiffs and defendants are entitled to a share in the suit schedule property which belongs to the joint family. Sri. V.K.Parthasarathy Mudaliar died on 25.11.1974. Hence, the succession of the joint family assets constitutes the suit schedule land in accordance with Hindu succession Act. The plaintiffs and

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defendant Nos.1 to 5 are entitled to equal share in the suit land. The plaintiffs are entitled for 1/8^th share each. Defendant No.1 and defendant Nos.2 to 5 are also entitled for 1/8^th share in the suit schedule property. It is contended that defendant No.6 had fraudulently took a deed from defendant Nos.1 and 2, in which though the real consideration fixed was Rs.90,000/-, defendant Nos.1 and 2 have been persuaded to execute a sale deed only for Rs.48,000/- and it is ascertained that defendant No.6 paid the consideration only to defendant Nos.1 and 2, out of which Rs.42,000/- was taken by defendant No.1 and Rs.40,000/- was taken by defendant No.2 and Rs.8,000/was left in the hands of defendant No.6 to discharge the loan due to PLD Bank at Ramanagar. It is contended that loan due to PLD Bank has not been discharged at all up to date. It is submitted that sale deed alleged to have been executed by defendant Nos.1 and 2 in favour of defendant

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No.6 is not binding on the plaintiffs. The plaintiffs have demanded for partition and separate possession, but the defendants have refused to effect the partition. It is also

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contended that at the time of execution of alleged registered sale deed by defendant Nos.1 and 2 in favour of defendant No.6, plaintiff Nos.2 and 3 were minors. Defendant No.1 without obtaining necessary permission from the concerned Court executed the registered sale deed in favour of defendant No.6 and the registered sale deed executed by defendant Nos.1 and 2 in favour of defendant No.6 is not binding on the share of the plaintiffs. Hence, prayed to decree the suit.

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Defendants No.3, 4 and 5 filed written statement contending that the sale consideration was Rs.90,000/-. Since defendants No.3, 4 and 5 have not received any consideration as mentioned in the sale deed, it is contended that they are only signatories to the deed. But they have not received the consideration amount. Hence prayed to decree the suit of the plaintiff.

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Defendant No.6 filed written statement admitting that the plaintiffs 2 and 3 and defendants No.2 to 5 are the children and defendant No.1 is the wife of Late V. K.

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Parthasarathy Mudaliar. Plaintiff No.1 is a stranger and has no locus standi to file a suit on behalf of plaintiff No.3. It is denied that plaintiffs No.2, 3 and defendants No.1 to 5 sold the suit schedule property for a valuable consideration for the family necessity and executed a registered sale deed by receiving the consideration amount. It is contended that when defendant No.6 purchased the suit schedule property, it was a dry land. After the purchase, he had invested a huge amount and effected improvement in the suit land. It is contended

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that defendant No.6 had acquired right over the suit schedule property. Plaintiffs have no right to claim any share in the suit schedule property. It is denied that plaintiffs No.2 and 3 were minors at the time of sale transaction, i.e., on 16.10.1978, and no permission is obtained by the natural guardian before the execution of registered sale deed from the District Court. It is contended that the sale deed executed by plaintiffs No.2, 3 and defendants No.1 to 5, is for family and legal necessity to discharge the loan obtained by defendant

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NC: 2023:KHC:45465 RSA No. 856 of 2007 C/W RSA No. 1183 of 2007

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No.1 from PLD Bank. Hence there is no cause of action to

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file the suit. The cause of action shown in the plaint is

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false and imaginary and prayed to dismiss 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 & additional issue:

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ISSUES :

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1. Whether the first plaintiff proves that she is the daughter of late Sri. V.K.Parthasarathi Mudaliar?

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1. Whether the plaintiffs prove that the sixth defendant has fraudulently taken a deed from defendants 1 and 2 as averred in paras 4 and 5 of the plaint?

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1. Whether the plaintiffs prove that the sale deed of the sixth defendant is null and void under Section 23 of the Contract Act and not binding on the plaintiffs, as averred in paras 11 and 14 of the plaint?

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1. Whether the plaintiffs prove that the entire suit property belongs to the joint family of the plaintiffs and defendants 1 to 5 and the possession of the sixth defendant is wrongful?

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1. Whether the plaintiffs prove that they are entitled to 1/8^th share each in the suit schedule property and for partition and possession of the same along with the profits, as prayed in the plaint?

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1. Whether the sixth defendant proves that he has become the absolute owner of the suit property under the sale deed dated 16.10.1978 and he has effected improvements by spending Rupees Two Lakhs as averred in para 8 of his written statement?

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1. Whether the sixth defendant proves that the first plaintiff has lost their right by efflux of time and the suit has to go on this ground only?

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1. Whether the suit is properly valued and Court fee paid is sufficient?

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1. Whether the sixth defendant proves that the suit is not maintainable without seeking for setting aside the sale deed?

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To what reliefs the parties are entitled?

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ADDITIONAL ISSUE :

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1) Whether the 6^th defendant proves that there was legal necessity in the family of the plaintiffs to sell the suit schedule property in his favour under the registered sale deed dated 16.10.1978 as contended in the written statement?

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In order to prove the case of the plaintiffs, the plaintiff No.2 was examined as PW-1 and plaintiff No.1 was examined as PW-2 and got examined one witness as PW-3 and got marked 14 documents as Exs.P1 to P14. One of the legal representatives of defendant No.6 was examined

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as DW-1 and got marked 14 documents as Exs.D1 to D14.

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The trial Court considering the oral and documentary evidence of the parties, answered issue Nos.1, 6 and additional issue No.1 in the affirmative; issue Nos.2, 3, 4, 7 and 9 in negative; issue No.8 was deleted as per order dated 06.02.2001; issue No.10 as per the final order and consequently decreed the suit of the plaintiffs in part and it is ordered and declared that the plaintiff No.1 is entitled to 1/8^th share in the suit schedule property and it is further declared that the sale deed dated 16.10.1978, does not

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bind her share in the suit schedule property. The prayer of plaintiffs No.2 and 3 for partition and separate possession each, in the suit schedule property, is rejected.

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Plaintiffs No.2 and 3 aggrieved by the dismissal of

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the suit in respect of partition and separate possession, preferred an appeal in R.A.No.15/2002 and the legal representative of defendant No.6 aggrieved by the judgment and preliminary decree passed by the trial Court granting 1/8^th share in favour of plaintiff No.1, preferred

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an appeal in R.A.No.18/2002. The First Appellate Court, after hearing the parties, has framed the following point for consideration:

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"Whether the learned trial Judge has erred in properly appreciating the oral and documentary evidence on record in the light of settled principles of law and that whether the interference by this Court in the impugned judgment and decree is necessary?"

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The First Appellate Court, on re-assessment of oral and documentary evidence, answered the point for consideration in affirmative and consequently dismissed R.A.No.15/2002 filed by plaintiffs No.2 and 3 and allowed R.A.No.18/2002 filed by the legal representatives of defendant No.6 and set aside the judgment and decree passed by the trial Court and the entire suit of the plaintiffs was dismissed by common judgment. The plaintiffs No.2 and 3 aggrieved by the judgment and decree passed by the First Appellate Court, have filed RSA No.856/2007 and the plaintiff No.1 aggrieved by the judgment and decree passed by the First Appellate Court, filed RSA No.1183/2007.

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This court admitted the appeal on the following

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common substantial questions of law :

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1) Whether the plaintiff Nos.1 and 2 being minors were entitled to an undivided 1/8^th share in the suit schedule property by virtue of Section 8 of the Hindu Succession Act, 1956? If yes, whether the trial Court and First Appellate Court committed an error in holding that the suit property was an ancestral joint family property and that the sale of the suit property was for the benefit of the plaintiff Nos.1 and 2? Did the defendant No.6/purchaser adduce adequate evidence to establish the family necessity?

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2) Whether the First Appellate Court committed an error in considering the sale of some joint family properties as evidence of the fact that he joint family was facing severe financial constraint and was not able to maintain the expenses of the family?

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Heard learned counsel for the parties.

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Learned counsel for the plaintiffs submits that

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admittedly the suit schedule property is a joint family property of plaintiffs and defendant Nos. 1 to 5. Plaintiffs and defendants No.2 to 5 are the children of defendant No.1 and V.K.Parthasarathi Mudaliar. He submits that

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there is no partition affected between the plaintiffs and defendants No.1 to 5 and that the family had no legal necessity to sell the suit schedule property. Further the sale is not for family and legal necessity. He submits that the defendant No.6 has not proved that the sale is for family and legal necessity. The sale deed alleged to have been executed by defendants No.1 to 5 in favour of defendant No.6 is not binding on the share of plaintiffs. He submits that the initial burden is on defendant No.6 to prove that he is a bona fide purchaser and the sale is for family and legal necessity. He further submits that as per the defence of defendant No.6, the total consideration of the suit land was Rs.90,000/- and out of Rs.90,000/-, defendant No.6 paid part consideration amount of Rs.42,000/- to defendant No.1 and Rs.40,000/- to defendant No.2 and it was agreed that remaining amount was to be paid to the PLD Bank, Ramanagar for discharging the loan obtained by defendant No.1. He submits that DW-1 had admitted in the course of cross-examination that, he had not produced any records to show that defendant No.6 had

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paid amount of Rs.8,000/- to PLD Bank, Ramanagar. He submits that the courts below have committed an error in dismissing the suit of the plaintiffs. Hence on these grounds he prays to allow the appeal.

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Per contra, learned counsel appearing for the

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legal representative of defendant No.6 submits that defendants No.1 and 2 have sold the suit schedule property in order to discharge the loan obtained by defendant No.1 from PLD Bank. He submits that defendant No.6 after purchasing the property, invested a huge amount and effected improvement in the suit land. He submits that the plaintiffs have no right to claim any share in the suit schedule property. He also submits that plaintiff No.1 is not the daughter of defendant No.1 and she has no right to claim any share in the suit schedule property and further the courts below were justified in passing the impugned judgment. He submits that during

¶190

the pendency of this appeal, the legal representative of defendant No.6 sold portion of land in favour of

¶191

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respondents No.7 to 11. Hence on these grounds he prays to dismiss the appeal.

¶193

Learned counsel appearing for respondent No.17 in RSA No.1183/2007, adopts the argument of learned counsel for the legal representative of defendant No.6.

¶194

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

¶195

SUBSTANTIAL QUESTION OF LAW NO.1 : Plaintiff

¶196

No.2 was examined as PW-1. He had deposed that plaintiffs No.1 and 3 are sisters and defendant No.1 is the mother and defendants No.2 to 5 are his brothers and his father died in the year 1974. His father was working at HAL when he was alive and the suit schedule property belonged to his father. He had deposed that defendants No.1 and 2 have sold the said land in favour of defendant No.6 for consideration of Rs.90, 000/-. The said sale deed

¶197

was registered in the year 1976. He had deposed that defendant No.2 was working as a mechanic in Bangalore in

¶198

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a workshop and earning Rs.500/- p.m. Defendants No.1 and 2 had raised a loan of Rs.6,000/- from PLD Bank. At

¶201

that time they sold the property. It is contended that during the year 1983, he came to know about the sale of suit property and applied for certified copy of the registered sale deed. The said certified copy of the registered sale deed is marked as Ex.P1 alleged to have been executed by defendants No.1 and 2 in favour of defendant No.6; Exs.P2 and P3 are the RTC extracts of the suit property; Ex.P4 is the account extract of his mother i.e., defendant No.1; Ex.P5 is the bank account extract of defendant No.2; Ex.P6 is the passbook of PLD bank; Exs.P7 and P8 are the notices issued by the PLD Bank; Ex.P9 is the copy of reply issued to the PLD Bank; Ex.P10 is the letter written by the Arbitrator of the Bank; Ex.P11 is the RTC of suit property. He had deposed that the defendants No.1 and 2 have utilized the sale proceeds for

¶202

their personal use. They have not spent the money for the family and legal necessity. The plaintiffs being the members of Hindu undivided joint family, they are entitled

¶203

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¶204

for share. The sale deed alleged to have been executed by defendants No.1 and 2 in favour of defendant No.6 is not for family and legal necessity. The family had sufficient income and there was no family debt to discharge. That after purchasing the property by defendant No.6, he had not made any improvement in the property. At the time of sale transaction, PW1 and plaintiff No.3 were minors. He was aged about 14 years and plaintiff No.3 was 12 years old. In the year 1978, defendant No.3 was working as a turner in a workshop at Bangalore and was getting monthly salary of Rs.500/-.

¶205

In the course of cross-examination it was

¶206

suggested to PW-1 that the suit property was sold to defendant No.6 in the year 1978 and he did not know the financial condition of the family. The said suggestion was denied by PW-1. He admits that he was a minor in the year 1978, when the property was sold and he was residing separately in Ramanagar Town. He admits that defendant No.6 after purchasing the suit property had

¶207

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¶208

improved the same. He had denied that the property was sold for discharge of debt obtained from PLD Bank. He had denied that his father had no sufficient income for maintenance and was in a financial crisis. PW1 stated in the examination-in-chief that plaintiff No.1 is the sister of PW1. The said fact is not denied in the course of cross examination.

¶209

Plaintiff No.1 was examined as PW-2. She had deposed that she is the daughter of Parthasarathy Mudaliar and she was born and brought up in Bangalore and studied up to 10^th Standard at Bangalore and the suit schedule property belongs to her father and defendants No.1 to 5 have sold the suit schedule property to defendant No.6. She came to know about the selling of the suit property to defendant No.6 in the year 1980, but the family had no financial crisis. Hence the alienation made by defendants No.1 to 5 in favour of defendant No.6 is not for family and legal necessity and the sale deed executed by defendants No.1 to 5 in favour of defendant

¶210

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¶211

No.6 is not binding on the plaintiffs. Though defendant No.6 in the written statement contended that plaintiff No.1 is not the daughter of Parthasarathy Mudaliar, but PW-2 has deposed in the examination-in-chief that she is the daughter of Parthasarathy Mudaliar. The said fact has not been denied by defendant No.6 in the course of crossexamination and nothing has been elicited from the mouth of this witness.

¶212

Further, the plaintiffs have examined one Rangaswamy as PW-3 who had deposed that he knows plaintiff No.1 and she is the daughter of Parthasarathy Mudaliar and Vishalakshi and plaintiffs No.2 and 3 and defendants No.2 to 5 are brothers and sisters of plaintiff No.1. Her marriage was performed and after the death of her husband, she came to Ramanagar and settled there. She is residing separately. In the course of crossexamination, he had stated that he do not know the family affairs and business of Parthasarathy Mudaliar and plaintiff No.1 is the neighbuor of PW-3 in Ramanagar Town and

¶213

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plaintiff No.1 is cordial with PW-3. It is elicited that in the year 1973, the husband of plaintiff No.1 expired. Even in the course of cross-examination, there is no denial that plaintiff No.1 is the daughter of Parthasarathy. If on certain relevant issues, the cross examination is not being carried out it will be deemed to be accepted since cross examination on this issue remained silent applying the well settled principles. The Hon'ble Supreme Court in the matter of VINOD KUMAR V. STATE OF HARYANA reported in (2015)3 SCC 138 held that “When there is no cross examination on a factual matrix and that remained un challenged that ought to be believed by the Court. It further lays down that Section 138 of the Evidence Act, confers a valuable right of cross-examining the witness tendered in evidence by opposite facts and the scope of that provision is enlarged by Section 146 of The Evidence Act by allowing a witness to be questioned:

¶216

(1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions

¶217

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¶218

might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.”

¶219

The statement made by PW1 & PW2 that plaintiff No.1 being the daughter of Parthasarathy, would be

¶220

deemed to have a special knowledge on the subject as per Section 50 of the Evidence.

¶221

In order to consider the relationship of plaintiff No.1 with V.K.Parthasarathy, it is necessary to examine Section 50 of the Indian Evidence Act, 1872, which reads as under:

¶222

"50. Opinion on relationship, when relevant.

¶223

– When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:

¶224

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)."

¶225

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¶226

The essential requirements of Section 50 of the Evidence Act are that (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship.

¶227

As observed above, PW-1 and PW-2 stated in their evidence about the relationship of plaintiff No.1 with V.K.Parthasarathy. The said fact is not denied in the course of cross-examination. PW-2 and defendants No.1 to 5 are acquainted with relationship and they have special means of knowledge and the examination-in-chief remains unshaken. Thus there is presumption under Section 50 of the Indian Evidence Act. Defendants No.1 to 5 filed written statement but have not denied the relationship of

¶228

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¶229

plaintiff No.1 with V.K.Parthasarathy. Thus, by the conduct of the parties, the plaintiff No.1 has proved that she is the daughter of V.K.Parthasarathy.

¶230

Defendant No.6 died during the pendency of the

¶231

suit. The legal representatives were brought on record. One of the legal representatives was examined as DW-1. He had deposed that his father had purchased the suit land from defendants No.1 to 5 under registered sale deed

¶232

and paid the consideration amount. The sale was for family and legal necessity to clear the loan obtained from PLD Bank of Rs.8, 000/- and remaining Rs.38,000/- was paid at the time of registration of sale deed to the vendor and the sale was for educational expenses of the family members and plaintiff No.1 is not a relative of defendant No.1 and after purchasing the said land, defendant had developed the land by constructing farm house and planted more than 400 coconut trees. He had produced original registered sale deed executed by defendants Nos.1 to 5 in favour of defendant No.6 marked as Ex.D1.

¶233

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He had stated that plaintiffs have no right to claim any share in the suit schedule property.

¶236

In the course of cross-examination he had stated that he was born on 25.05.1974, and he had no personal knowledge about the said sale transaction, but it is known to his parents. He is unable to say in which place the sale transaction took place, as he was a small child. He came to know from his father that at the time of purchase of property, there was a loan from PLD Bank on the property and his father has repaid the loan amount of Rs.8,000/-. He had produced the documents before the Court. He admits that he do not possess any documents to show the availment of loan from PLD Bank. It was elicited that except the bank loan, the family had no other debts at the time of said sale transaction. Further he admits that all the children of Parthasarathy Mudaliar

¶237

have got right over his property (emphasis supplied).

¶238

He further admits that he had not produced any records to show that he had invested amount for the improvement of

¶239

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suit land. He pleads ignorance about taking permission to purchase the property pertaining to minor's interest. He denies that defendants No.1 and 2 have sold the property to meet out their personal expenses and transaction was not for family necessity. He admits that he do not know personally who had received the sale consideration amount and personally who participated actively on behalf of the vendor's family in connection with the sale transaction. He denies that the sale deed executed by defendant Nos.1 to 5 in favour of defendant No.6 is not binding on defendants No.3 to 5.

¶241

From the perusal of the records produced by the plaintiff discloses that the property stood in the name of Parthasarathy. He died leaving behind the plaintiffs and defendant Nos.1 to 5. Defendant Nos.1 to 5 and the plaintiffs No.2 and 3 executed a registered sale deed on 16.08.1978 in favour of defendant No.6. plaintiff Nos.2 and 3 were minors as on the date of execution of the registered sale deed and plaintiff No.1 is not a party to the

¶242

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registered sale deed. Admittedly, the suit schedule property is the joint family property of the plaintiffs and the defendants. It is the case of defendant No.6 that the sale is for family and legal necessity.

¶244

The burden of proof is on the defendant No.6 to

¶245

prove that the sale executed by plaintiff Nos.2 and 3 and defendant Nos.1 to 5 is for the family and legal necessity. In order to prove that the sale was for family and legal necessity, the legal representatives of defendant No.6 was examined as DW.1. In the course of cross examination, he admits that he had no personal knowledge about the sale transaction, but it is known to his parents, but the defendant No.6 had not examined any attesting witnesses to the registered sale deed to prove that the sale was for family and legal necessity. Further, he admits that he came to know there was loan at the PLD Bank on the property and his father had repaid PLD Bank loan of Rs.8,000/-. But defendant No.6 had not produced any records to show that the defendant No.6 repaid the loan of

¶246

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¶247

Rs.8,000/-. Plaintiff No.2 and defendant No.1 have sold

¶248

the suit schedule property in order to clear the loan of PLD Bank and from the perusal of the records; defendant No.6 had not produced any records to show that defendant No.6 had cleared the loan. Further there is a recital in the sale

¶249

deed that the sale is for the family and legal necessity. Hence, I would like to place reliance on the judgment of the Hon'ble Apex Court in the case of SMT. RANI AND ANOTHER VS. SMT. SANTA BALA DEBNATH AND OTHERS

¶250

reported in AIR 1971 SC 1028 , held in para No.11, which reads as under:

¶251

"11. Recitals in a deed of legal necessity do not themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld,

¶252

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such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession."

¶254

The Hon'ble Apex Court held that recitals in a sale deed, of legal necessity, do not by themselves prove the legal necessity. Further, the recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into, the recital may be used to corroborate other evidence on existence of legal necessity. In the instant case, legal representatives of defendant No.6 was examined as DW.1. Defendant No.6 has not examined the attesting witness to the registered sale deed, who are the better persons to depose in regard to the legal necessity. Defendant No.6 withheld the attesting witness to the registered sale deed. An adverse inference has to be drawn against defendant No.6 for withholding the attesting witness. Defendant

¶255

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¶256

No.6 had failed to prove that the sale was for the family and legal necessity. Admittedly, as observed above, defendant No.6 had not examined any attesting witness to the registered sale deed, in order to prove that the sale was for the family and legal necessity. Admittedly, plaintiff No.1 is not a party to the sale deed and she has not executed the sale deed. Further, plaintiff Nos.2 and 3 were minors as on the date of execution of the registered sale deed and sale deed alleged to have been executed by defendant Nos.1 to 5 in favour of defendant No.6 is not binding the plaintiffs to any extent, whatsoever, insofar as their share is concerned. But at the same time, the sale is not null and void as the persons who have executed the sale deed had a share in the property which is sold i.e., defendant Nos.1 to 5. Defendant No.6 is entitled to the share of defendant Nos.1 to 5 and he has to workout his remedy in the appropriate proceedings. Thus, admittedly, suit schedule property is the joint family property and plaintiffs are entitled for share in the suit schedule property. The Courts below without examining the said

¶257

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aspect have proceeded to pass the impugned judgments and decrees. The judgments and decrees passed by the Courts below are arbitrary and erroneous and further defendant No.6 has failed to establish that the sale was for family and legal necessity.

¶259

Further, I would like to place reliance on the judgment of Hon'ble Division Bench of this Court in the case of VIJAYALAKSHMI @ KAMALA VS. MAHADEVI AND

¶260

OTHERS in RFA No.1646/2006 disposed of on 27.01.2010, wherein at para No.15 Hon'ble Apex Court has held as under:

¶261

"15. As the sale deed is executed by the 2^nd defendant and the property is held to be a joint family property, in which 2^nd defendant also has a share. The 1^st defendant under the sale deed claims to have purchased the property which belongs to the 2^nd defendant, that is his share, as plaintiff is not a party to the sale deed she has not executed the sale deed, the sale deed do not bind the plaintiff to any extent whatsoever ins o far as her share is concerned. But at the same time, the sale is not null and void as the person who has executed

¶262

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the sale deed has a share in the property which is sold. What is actual share to which 1^st defendant is entitled to is a matter to be worked out in an appropriate proceedings and not in these proceedings. "

¶265

The plaintiffs are entitled for 1/8^th share each in the suit schedule property and defendant No.6 is entitled for the share of defendant Nos.1 to 5 i.e., 5/8^th share and further legal representatives of defendant have sold the portion of property in favour of respondent Nos.7 to 11 in this appeal during the pendency of this appeal. The purchasers filed an application to implead them as respondent Nos. 7 to 11. The sale transaction infavour of respondent Nos. 7 to 11 is hit by Section 52 of Transfer of Property Act, when the sale deed has been executed during the pendency of the suit, the purchaser is bound by the outcome of the suit and provisions of Section 52 of the Transfer of Property Act and suit proceedings. It was not at all necessary to seek the suit for cancellation of sale deed as the vendor had no right to sell the land, as the

¶266

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¶268

defendants No.1 to 5 have no right to sell the land of other co-sharers as such right, title and interest of respondent Nos.7 to 11 were subject to disposal of these appeals.

¶269

In the instant case, defendant No.6 and respondent Nos.7 to 11 are bound by the decree which

¶270

may be passed against them and further I would like to place reliance on the judgment of Co-ordinate bench in the

¶271

case of GURUSHANTAPPA AND OTHERS VS. SHANKAR AND

¶272

OTHERS in RSA No.1346/2007 reported in AIR 2019 KAR 113 , wherein this Court held that “It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the

¶273

result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations

¶274

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of his vendor as may be eventually determined by the Court."

¶276

Admittedly, the suit property was owned by V.K.Parthasarathy Mudaliar. He died intestate leaving behind the plaintiffs and defendants No.1 to 5 as his legal

¶277

heirs. As per Section 8 of the Hindu Succession Act, the property of male Hindu dying intestate shall devolve upon the heirs specified in Class-I of the schedule. Admittedly, the plaintiffs and defendants No.1 to 5 are the Class-I heirs of deceased V.K. Parthasarathy. After the demise of V.K.Parthasarathy, the suit property devolved upon the plaintiffs and defendants No.1 to 5. Hence the plaintiffs and defendants No.1 to 5 are entitled for equal share in the suit property. Defendant No.6 denied that plaintiff No.1 is not the daughter of V.K.Parthasarathy. PW-1 and PW-2 are examined. They have deposed plaintiff No.1 is the daughter of V.K.Parthasarathy. The said fact is not denied in the cross-examination. Defendants No.1 to 5 filed written statement. They have not denied that

¶278

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plaintiff No.1 is daughter of V.K.Parthasarathy. Defendant No.6 is a stranger to the family of plaintiffs and defendants No.1 to 5.

¶280

As observed above, the defendant No.6 has

¶281

failed to prove that sale is for the family and legal necessity. The said sale deed is not binding on the plaintiffs. The plaintiffs are entitled for share in the suit schedule property. Further, the Courts below have committed an error in passing the impugned judgments and decrees. In view of the above discussion, substantial question No.1 is answered in the affirmative.

¶282

Substantial question No.2: The First Appellate Court had considered the sale of some of the joint family property as evidence of fact, that the joint family was facing financial constraints and was not able to maintain expenses of the family. In order to prove the said fact, defendant No.6 had not lead any evidence. On the contrary, PW.1 had deposed that there was no legal necessity to the family and there was no family and legal

¶283

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necessity. Defendants No.1 to 3 were getting rent per month by letting out an open space and running a fire wood depot. Parthasarathi Mudaliar was employed in HAL and defendant No.3 was working as a Turner. The family was possessing sufficient funds. Defendant No.6 produced registered sale deeds executed by plaintiff No.1 and defendants Nos.1 to 5 in favour of third parties. Defendant No.6 has produced registered sale deeds marked as Exs.D.3, D.4, D.12, D.13 and D.14. Defendant No.6 has not examined purchasers under the aforesaid registered sale deeds. It is well settled that mere marking of documents, does not dispense its proof. Thus, defendant No.6 failed to prove that joint family was facing severe financial constraint and was not able to maintain expenses of the family. The Courts below placing reliance on Exs.D.3, D.4, D.12, D.13 and D.14 held that family was facing a financial constraint. As observed above, defendant No.6 except producing the registered sale deeds, has not proved the contents of documents by examining the purchasers under the registered sale deeds.

¶286

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¶287

The courts below have committed an error in placing reliance on Exs.D.3, D.4, D.12, D.13 and D.14 without considering that defendant No.6 has not proved the contents of documents.

¶288

33. DW.1 admitted in course of cross examination,

¶289

that the children of Parthasarathy Mudaliar has got a right in the suit schedule property and further the defendants have denied that plaintiff No.1 is not a daughter of Parthasarathy Mudaliar. Plaintiff No.1 had lead the evidence which discloses that she is the daughter of Parthasarathy Mudaliar and further other defendant Nos.1 to 5 have also admitted that plaintiff No.1 is the daughter of Parthasarathy Mudaliar. In view of the above discussion, substantial question No.2 is answered in the affirmative.

¶290

Accordingly, I proceed to pass the following:

¶291

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¶293

ORDER

¶294

The appeals are allowed.

¶295

The judgments and decrees passed by the Courts below are set aside. Consequently, the suit of the plaintiffs is decreed in part.

¶296

The plaintiffs are entitled for 1/8^th share each in the suit schedule property and defendant Nos.6 and 7 and respondent Nos.7 to 11 herein, can workout their remedy in appropriate proceedings before the appropriate forum.

¶297

The plaintiffs are also entitled for mesne profits from the date of suit till the date of possession by each plaintiffs of their share to be determined under Order XX Rule 18 of CPC in respect of the suit schedule property.

¶298

Draw preliminary decree accordingly.

¶299

SD/JUDGE

¶300

RD, SSB, SKS

Murali Gopal v. v P Vishalakshi

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Murali Gopal v. v P Vishalakshi

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