Appeal against decree for partition of property purchased in the mother's name, alleged to be bought with proceeds of inherited property sold later. The High Court held the property was self-acquired, the power-of-attorney sale valid despite interpolated survey number, and dismissed the suit.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16th DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
RFA NO.1664 OF 2012 (PAR)
BETWEEN:
ALL S/O LATE MR.GOPAL RAMNARAYAN, HAVING OFFICE AT 16/A, MILLER ROAD, BANGALORE - 560 052, NOS.1 AND 2 ARE REPRESENTED BY THEIR PA HOLDER JAWAHAR GOPAL - APPELLANT NO.3
...APPELLANTS (BY SRI DHANANJAY JOSHI, SR. COUNSEL A/W SRI VACHAN H.U, ADVOCATE)
AND:
S/O.LATE B.MADHAV BALIGA, AGED ABOUT 60 YEARS, RESIDING AT NO.15 (222/3E), OFF WIND TUNNEL ROAD, MURUGESH PALYA, BANGALORE-560017.
2 . SRI DINESH BALIGA, S/O.LATE B.MAHADEV BALIGA, RESIDING AT SY.NO.56/3, NELLURHALLI, K.R.PURAM HOBLI, BANGALORE SOUTH TALUK - 560036.
…RESPONDENTS
(BY SRI SHISHIRA AMARNATH, ADVOCATE FOR R1, BY SRI PRAMOD KATHAVI, SR. COUNSEL A/W SRI VIKRAM UNNI RAJAGOPAL, ADV. FOR R2, SRI SANDEEP PATIL, ADVOCATE FOR R3)
THIS RFA IS FILED UNDER SECTION 96 R/W O-41(1) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.06.2012 PASSED IN O.S.10195/1995 ON THE FILE OF THE XXVIII-ADDL. CITY CIVIL JUDGE, MAYO HALL, BANGALORE, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 05.04.2024 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
died intestate on 09.07.1982, leaving behind his wife Sharada Baliga i.e., defendant No.1 (who died during the pendency of the suit), and also two sons Ganesh Baliga the plaintiff, Dinesh Baliga the defendant No.2 and the daughter Shalini Kamath the defendant No.3.
the demise of Madhav Baliga was sold on 02.06.1986 by the plaintiff and defendants No.1 to 3. The property is sold for Rs.1,50,000/-.
acquired property and there was no contribution from the plaintiff to purchase the same. The first defendant had executed a registered power of attorney in favour of defendant No.6 authorising him to sell the suit property and the suit property is sold during the pendency of the suit and the purchaser had acquired title over the same.
this appeal is now supporting the appellants and claims to have entered into a settlement with the appellants.
appearing for the appellants would contend that the suit schedule property is the self-acquired property of defendant No.1. Defendant No. 6 acting as the power of attorney holder of defendant No.1 sold the suit property. The finding of the trial Court that the suit schedule property was purchased by defendant No.1 from the joint family fund is without any basis. The plea of the plaintiff that the suit property is purchased from the sale consideration derived from the sale of the joint family sold on 02.06.1986 itself is unacceptable as the suit property is purchased four months before the sale of the joint family property. The oral evidence led by the plaintiff to contradict the recital in the sale deed is barred under Section 92 of the Indian Evidence Act. The presumption relating to the self-acquisition of the property by defendant No.1 is not rebutted.
18. Learned Senior counsel Sri. Pramod Kathavi
appearing for respondent No.2 would contend that defendant No.1 did not have any income of her own to purchase the suit schedule property and the recital in Ex.P2 the sale deed dated 02.06.1986 itself would reveal that the said property is sold to purchase a property in Nellurhalli. The appellants being strangers to the family have no locus standi to urge that defendant No.1 had an independent source of income. The appellants evidence relating to alleged self-acquisition of the property by defendant No.1 is hearsay. The family inherited Sy. No. 29 after the demise of Madhav Baliga and advance sale consideration amount received from the sale of the said property is utilised to purchase the property in the name of defendant No.1.
contend that the power of attorney said to have been executed by mother/defendant No.1 is concocted and the defendant No.6/DW-1 himself admitted in the crossexamination that he has inserted the survey number in the schedule of the power of attorney after registration without the knowledge and consent of the principal. Thus all sale deeds executed based on the power of attorney are invalid.
23. This Court has considered the contentions raised
at the bar and perused the records.
on 07.02.1986 in the name of defendant No.1 is the joint family property. The contention relating to the nature of the property being joint family property is based on the premise that the sale consideration to purchase the property came from the sale proceeds of the property sold on 02.06.1986. There is a recital in the sale deed dated 02.06.1986 to say that the property is sold to purchase the property in Nellurahalli. It is relevant to note that the sale deed dated 07.02.1986 pertaining to the suit property in the name of defendant No.1 records a complete sale transaction where the entire sale consideration amount is paid. Out of the total consideration of Rs.1,20,000/-, Rs.85,000/- was paid in advance. Out of the advance consideration amount of Rs.85,000/- Rs.70,000/- was paid through cheque and Rs.15,000/- was paid in cash. Remaining Rs.35,000/- was paid at the time of registration of the sale deed. Admittedly, when the property was purchased the joint family property was not sold. It is also relevant to note that Rs.70,000/cheque was issued by defendant No.1 the mother. There is nothing in the sale deed dated 07.02.1986 to indicate that the amount is paid from the joint family fund or the amount
is paid from the advance consideration amount received from
the proposed sale of joint family property.
defendants No.1 to 3 had entered into the oral agreement to purchase the property in the name of defendant No.1 by utilising the advance sale consideration amount.
to the joint family. However, there is no presumption that the joint family holds the joint family property. The property in the name of an individual is presumed to be self-acquired property and of course, the presumption is rebuttable. The plaintiff has failed to establish that the property is the joint family property and he has failed to rebut the presumption.
07.02.1986 itself i.e., much before the sale of the joint family property. This Court is unable to accept the reasoning assigned by the trial Court to hold that the suit property is the joint family property.
supported by any material. On the other hand, the said recital is proved to be wrong from the recital in the very same sale deed which recites that the property is sold for Rs.1,50,000/- and entire sale consideration amount is paid on the date of the sale. And the fact that the suit property was purchased prior to the sale of property bearing Survey No.29, and entire sale consideration amount is paid to purchase the suit property on 07.02.1986 itself also leads to the conclusion that sale consideration amount paid to purchase the suit property is the sale consideration amount that the received from the sale of Sy. No.29.
evidence of defendants No. 4 to 6 is hearsay has to be rejected.
attorney in respect of some other property other than the suit property. In addition, the power of attorney even without the insertion relating to the survey number, refers to the village, extent of the property as well as the boundary. Thus, the property can be ascertained and identified even without survey number. This being the position, this Court is of the view that even if the survey number is not specifically mentioned in the power of attorney, the said power of attorney should be construed as the power of attorney to sell the property in the name of defendant No.1. There is no dispute that the suit property stood in the name of defendant No.1 when she executed the power of attorney. Thus, the admission of defendant No.6 that he has inserted a survey number in the power of attorney post registration of the power of attorney does not invalidate the power of attorney and the transaction based on power of attorney especially in
a situation where the executant has not questioned the sale transaction based on the power of attorney and has admitted the execution of the power of attorney as well as the sale transaction based on the power of attorney.
defendant No.1 and the defendant No.1 sold the property in violation of the Court order.
contention that the property sold in contravention of the Court order is unacceptable.
has filed an application for production of additional documents namely the copy of the letter said to have been addressed by the counsel for the plaintiff immediately after obtaining the ex-parte injunction order. Another application is filed to transpose defendant No.2 as the plaintiff. This Court has considered the letter said to have been addressed by the counsel for the plaintiff to defendant No.1 intimating about the interim order granted by the Court. As already noticed, no plea was raised before the trial Court to the effect that the notice was sent to defendant No.1 intimating that the Court has passed an ex-parte order. This being the position, the Court is unable to accept the said document at this belated stage that too when the application is filed after the conclusion of arguments by the appellants. Even if it is accepted that the letter is served on defendant No.2, the same does not amount to serving the copy of the Court order which is the primary requirement to hold that the property is sold in violation of the Court order. Since the Court has made reference to the additional document sought to be produced and has held that the said document is of no
assistance to the respondents, for technical purpose the said application is allowed.
the ratio in the above mentioned judgments. Hence those judgments are of no assistance to the respondents.
49. Hence the following:
ORDER
(ii) The judgment and decree dated 25.06.2012 in O.S. No.10195/1995 on the file of XXVIII Additional City Civil Judge, Bengaluru are set aside and suit of the plaintiff in O.S. No.10195/1995 on the file of XXVIII Additional City Civil Judge, Bengaluru is dismissed.
(iii) The parties shall bear the cost.
Sd/JUDGE
CHS
3 issues framed by the court
Whether the suit property purchased in the name of defendant No.1 was joint family property or her self-acquired property?
Whether interpolation of a survey number in a registered power of attorney invalidated it and the resulting sale?
Whether the sale during pendency violated the interim prohibitory order where communication of the order was not proved?
Colour shows how this judgement treated each authority
Mankour vs. Hartar SanghaDistinguished¶48
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Vidhyadhar vs. Manik Rao and AnotherDistinguished¶48
Vidhyadhar vs. Manik Rao and Another (1999) 3 SCC 573 · Who else cites this
Kesharbai vs. Tarabai Prabhakar Rao NalwadeDistinguished¶48
Kesharbai and Another vs. Tarabai Prabhakar Rao Nalwade (2014) 4 SCC 707 · Who else cites this
Jayalakshmi Trading Company vs. KrishnamurthyDistinguished¶48
Jayalakshmi Trading Company vs. Krishnamurthy and Another (2005) SCC Online Mad 571 · Who else cites this
3 provisions across 2 enactments
Manohar Gopal
Dhiren Gopal
Jawahar Gopal
Ganesh Baliga
Dinesh Baliga
Shalini Kamath
Anant Ramanath Hegde
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
