Dismissed

Sri R Babu Reddy v. Sri K M Ramaiah Reddy

Karnataka HC23 Feb 2024RFA/1909/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed this revision appeal filed by a son against the dismissal of his suit for declaration. The court held the property was the mother's self-acquired asset purchased with his father's funds repaid later, not joint family property. It also ruled that alienation by the owner (mother) with husband's consent is valid and an unregistered gift deed cannot estop parties

What did the court decide?

Appeal dismissed; no declaration granted; no costs.

Sri R Babu Reddy Vs Sri K M Ramaiah Reddy — Partition | Karnataka HC (2024)

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RFA 1909/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF FEBRUARY, 2024

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PRESENT

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THE HON’BLE MR.P.S.DINESH KUMAR, CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

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RFA NO.1909 OF 2016 (DEC/INJ)

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BETWEEN:

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SRI. R. BABU REDDY AGED ABOUT 63 YEARS S/O SRI. RAMAIAH REDDY R/AT NO.73, KORAMANGALA BENGALURU - 560 034 …APPELLANT

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(BY SRI.G.L.VISHWANATH , SR. ADV. FOR SMT.MANASA B. RAO, ADV.)

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AND:

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SRI. K. M. RAMAIAH REDDY AGED ABOUT 101 YEARS S/O PATEL MUNIYAPPA R/AT NO.73, KORAMANGALA BENGALURU - 560 034 SINCE DECEASED BY HIS LRS.

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1 . SMT JAYAMMA AGED ABOUT 85 YEARS W/O K M RAMAIAH REDDY D/O HANUMAPPA REDDY R/@ NO 73, KORAMANGALA BENGALURU - 560 034

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2 . SRI MOHAMMAD ANSAR AHMED MAJOR IN AGE, S/O ABDUL SALAM R/@ NO 397, BEHIND SYED BLOCK ANNASANDRAPALYA

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RFA 1909/2016

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HAL POST VIMANAPURA BENGALURU - 560 017 3 . SRI MOHAMMED MUKHTAR AHMED MAJOR BY AGE, S/O ABDUL SALAM R/@ NO 12-4/32/12, CHANDRABANDA ROAD, MUYKRAM GUNJ, RAICHUR - 584 102 4 . SRI SYED SHAFEEULLA MAJOR BY AGE S/O SYED ZAHERUDDIN R/A @ 37 MASJEED ROAD J K PURAM, ADUGODI POST BENGALURU - 560 030 5 . SRI ABDUL RAHMAN SHARIFF MAJOR BY AGE S/O LATE AKBAR SHARIFF R/A @ NO 43/6, 16^TH CROSS 2^ND MAIN LAKKASANDRA BENGALURU - 560 030 6 . SRI M THASUL ISLAM MAJOR BY AGE, S/O M MOHAMMED MUSTAFA, R/@ NO 39, ANJANAPURA LANE, MYSORE ROAD CROSS BENGALURU - 560 018 7 . SRI JAMAL MOHAMMED MAJOR BY AGE, S/O SULAIMAN ROWTHER R/@ NO 39, ANJANAPURA, LANE MYSORE ROAD CROSS BENGALURU - 560 018 8 . SRI AZEEM KHAN MAJOR BY AGE S/O KHALANDAR KHAN R/@ NO 9, 4^TH CROSS OLD GURUPPANAPALYA BANNERGHATTA ROAD CROSS BENGALURU - 560 029 9 . SRI LIYAKATHULLA KHAN MAJOR BY AGE, S/O B M ABDUL RASHEEM KHAN, R/@ NO 18/1, 15^TH CROSS LALBAGH FORT ROAD, DODDAMAVALLI

RFA 1909/2016

BENGALURU - 560 004

SMT NASIMA MAJOR BY AGE W/O KHADER ALI KHAN R/@ MANGAMMANAPALYA ROAD MADEENA NAGAR, BOMMANAHALLI BENGALURU - 560 060

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SMT BABIJAN MAJOR BY AGE, W/O AZIZULLA R/@ NO 67/1, BOMMANAHALLI VILLAGE, BEGUR HOBLI BENGALURU SOUTH TALUK

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SRI MOHAMMED KALEEMULLA MAJOR BY AGE, S/O SHAIKA HYDER SAB R/@ NO 18, OLD KHAZI, ROAD CROSS YOUNES BUILDING BENGALURU - 560 002

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SRI RIZWAN SHARIFF MAJOR BY AGE, S/O RASHOOL SHARIFF R/A BANNERGHATTA ROAD CROSS BISMILLA NAGAR 3^RD MAIN 6^TH CROSS BENGALURU - 560 029

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SMT NOOR JAN MAJOR BY AGE S/O SYED BASHEER R/@ NO 10 BTM I STAGE GURAPPANAPALYA BANNERGHATTA ROAD CROSS BENGALURU - 560 029

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SRI AKRAM PASHA S/O K ABDUL BASHIR MAJOR BY AGE, NO 16 2^ND MAIN ROAD, 2^ND CROSS SOMESHWARANAGAR JAYANAGAR I BLOCK BANGALORE - 560 011

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SRI M S CHANDRAHAS MAJOR BY AGE, S/O SINGAPPA

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RFA 1909/2016

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	R/A NO 34/462, 12^THCROSS 8^THMAIN WILSON GARDEN, BENGALURU - 560 027
17.	SRI N C VENKATESH MAJOR BY AGE, S/O SRI CHANDRAIAH NO 273, 12^THCROSS, WILSON GARDEN BANGALORE - 560 027
18.	SRI HARISH HANBALU MAJOR BY AGE, S/O YELLAPPA GOWDA NO 18, 8^THMAIN, 13^THCROSS WILSON GARDEN, BANGALORE - 560 027
19.	SRI SYED SADIQ MAJOR BY AGE, S/O SYED SABJAN MANGAMMANAPALYA CROSS NEAR HSR LAYOUT BOMMANAHALLI BANGALORE - 560 068
20.	SRI SYED SABJAN MAJOR BY AGE, S/O SYED KHASIM MANGAMMANAPALYA CROSS NEAR HSR LAYOUT, BOMMANAHALLI BANGALORE - 560 068
21.	SRI DADAPEER MAJOR BY AGE, S/O LATE MOHAMMED HANEEF MILAN TEA HOUSE, KALASIPALYA BANGALORE - 560 002
22.	SRI ALLAH BAKSH AGED ABOUT 46 YEARS S/O SRI SHAIK PEER SAB R/AT NO 10, ST MARIMAS ENGLISH SCHOOL NEW GURUPPANAPALYA B G ROAD BANGALORE - 560 029
23.	SMT HAMEERA BANU AGED ABOUT 44 YEARS W/O SRI SHAFIULLA, NO 19 1^STMAIN, YARAB NAGAR BSK II STAGE, BANGALORE - 560 070
24.	SMT SHABEEN TAJ AGED ABOUT 51 YEARS

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RFA 1909/2016

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W/O SYED AFSAR, R/@ NO 144, MASJID-E- BILAL BLDG. OPP KSRTC BUS STAND NEW PET ANEKARI BENGALURU RURAL DIST.

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SMT YASMEEN TAJ MAJOR BY AGE W/O SRI MOHAMMED ALI NO 2, BTS MAIN ROAD OPP ADUGODI POST OFFICE BANGALORE - 560 030

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SRI K L THOMAS MAJOR BY AGE S/O SRI K P LAZAR NO 31 MARIA NIVAS, 1^ST MAIN 1^ST CROSS BHARATHI LAYOUT BANGALORE - 560 029

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27 . SRI PYARU KHAN AGED ABOTU 70 YEARS S/O SRI JANAULLA KHAN NO 3, VINOBHA NAGAR, H SIDDAIAH ROAD CROSS BANGALORE - 560 027

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…RESPONDENTS (VIDE ORDER DATED 31.07.2018 SERVICE OF NOTICE TO R1, R2, R4, R6, R7, R9 TO R23 AND R25 AND R27 IS ACCEPTED BY WAY OF PAPER PUBLICATION; R3, R5, R8, R24 & R26 ARE SERVED)

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THIS RFA IS FILED UNDER SECTION 96(1) OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 26.09.2016 PASSED IN OS.NO.7051/2004 ON THE FILE OF THE XIV ADDL.CITY CIVIL JUDGE AT BENGALURU, DISMISSING THE SUIT FOR DECLARATION, MANDATORY INJUNCTION AND PERMANENT INJUNCTION. THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 13.10.2023 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, T.G.SHIVASHANKARE GOWDA J. , DELIVERED THE FOLLOWING:

RFA 1909/2016

J U D G M E N T

In this appeal, the plaintiff has challenged the dismissal of his suit filed for declaration and mandatory injunction by judgment and decree dated 26.09.2016 passed in O.S.No.7051/2004 by the XIV Additional City Civil Court, Bangalore (CCH-28) (for brevity 'the Trial Court').

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For the sake of convenience, parties shall be referred as per their status before the Trial Court.

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Brief facts of the case are, land in Sy.No.47/4, 50/3 to an extent of 1 acre 29 guntas situated at Venkojirao Khane village, Begur Hobli, Bangalore South Taluk is the subject matter of the suit (for brevity 'the suit schedule property'). Plaintiff is the son of defendants No.1 and 2. Suit schedule property is the joint family property of plaintiff and defendant No.1. Land in Sy.No.113/2 to an extent of 1 acre 3½ guntas and house at Koramangala were allotted to the share of

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RFA 1909/2016

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defendant No.1 in the partition between him and his brothers. Land was acquired by CITB (now BDA) for formation of Koramangala Layout in the year 1969 by paying compensation of Rs.1.05 Lakhs. In the year 1971, Koramangala house belonging to family was agreed to be sold. These funds was utilized for acquiring the suit schedule property. Defendant No.2 did not possess any independent source of income to purchase the suit schedule property, it was acquired in her name in Trust.

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3.1. Defendant No.2 has no right to execute

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the sale deed in favour of defendants No.3 to 17. The alleged sale deeds are not binding on the joint family. In the month of September 2003, plaintiff learnt about the said sales, he has issued notice to defendants No.3 to 17 and on receipt of the notice, they attempted to change the nature of the property. Hence, plaintiff has filed the instant suit for declaration.

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RFA 1909/2016

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Suit is opposed by defendants No.4, 7 and

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11 by filing their written statements.

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4.1. Defendant No.4 in the written statement interalia denied the allegations made in the plaint and contended that defendant No.2 is the absolute owner of the suit schedule property. He has purchased the vacant site Nos.8, 9 and 10 measuring 90 feet x 55 feet through registered sale deed dated 06.03.2008 and he is in possession and enjoyment of the same. This suit against the defendants is for wrongful gain.

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4.2. Defendant No.7 in the written statement interalia contended that the suit property is a selfacquired property of defendant No.2. Sale deed executed in their favour is for legal necessity, plaintiff is not the owner of the suit property. He cannot seek the relief of declaration in respect of alienation made by his parents i.e., defendants No.1

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RFA 1909/2016

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and 2. The suit is time barred. The suit filed is a result of collusion between plaintiff and defendants No.1 and 2.

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4.3. Defendant No.11 in his written statement

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interalia contended that the suit schedule property was purchased by defendant No.2 on 25.10.1971 when the plaintiff was a minor. The plaintiff has no source of income to contribute for such acquisition by defendant No.2. Suit property is an exclusive property of defendant No.2. The suit is engineered by defendants No.1 and 2 in collusion with the plaintiff. Defendant No.2 has executed a registered Power of Attorney in favour of one Pyaru Khan who sold the sites in the suit schedule property to several persons including this defendant. All the sites formed in the suit property are in possession of defendants No.3 to 17 as a bonafide purchasers. Plaintiff and defendant No.1 have consented for documents, sale deeds, General Power of Attorney in

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RFA 1909/2016

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favour of others and now they cannot contend misuse of power by defendant No.2. On these grounds, defendants have sought for dismissal of the suit.

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On the basis of the pleadings, the Trial Court has framed following issues:

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1. Whether the plaintiff proves that the suit schedule property is joint family property of the plaintiff and the defendants?

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2. Whether the plaintiff further proves that the alienation made by 1^st or 2^nd defendant in favour of defendants 3 to 7 is not binding on him and as such, defendants 3 to 7 do not derive any right, title and interest over the suit schedule property?

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3. Whether the plaintiff is entitled for the reliefs as prayed for?

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4. What Order or decree?

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ISSUE No.2 IS RECASTED AS FOLLOWS:

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RFA 1909/2016

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1. Whether the plaintiff further proves that the alienation made by 1^st or 2^nd defendant in favour of defendants No.3 to 17 is not binding on him and as such, defendants No.3 to 17 do not derive any right, title and interest over the suit schedule property?

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Before the Trial Court, plaintiff and two

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witnesses are examined as PWs-1 to 3 and marked Exs.P1 to P122. On behalf of the defendants, no evidence was let in. After considering the pleadings, evidence on record and hearing both the sides, the Trial Court answered issues No.1 to 3 in the negative and has dismissed the suit. Aggrieved by the same, plaintiff has filed this appeal on various grounds.

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We have heard the arguments of Sri.G.L.Vishwanath, learned Senior Counsel for Smt.Manasa B.Rao, learned Counsel for the appellant/plaintiff. Defendants served and unrepresented.

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RFA 1909/2016

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It is the contention of the learned Counsel on behalf of the plaintiff that five sale deeds were executed few weeks before filing of the suit, remaining sale deeds have been executed during the pendency of the suit thereby hit by lis pendens. The Trial Court has failed to consider legal effect of Ex.P9/Palupatti wherein defendants No.1 and 2 have given up their right in the suit schedule property in favour of the plaintiff. Defendants No.1 and 2 could not have sold the suit schedule property to other defendants after executing of Ex.P.9. Defendant No.2 did not have any means to purchase the suit property. The land in question was not converted into non-agricultural purpose, no layout plan was approved by any competent authority, alienation of the sites through sale deeds will not confirm title on the defendants and the Trial Court has erroneously dismissed the suit.

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RFA 1909/2016

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We have given our anxious consideration to

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the arguments addressed on behalf of the plaintiff and perused the records.

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In the light of the rival contentions urged

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on both parties, the points that arise for our consideration are:

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(i) Whether the suit schedule property is the joint family property of the plaintiff and defendant No.1?

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(ii) Whether the alienation made by defendant Nos.1 and 2 in favour of defendant Nos.3 to 17 is binding on the plaintiff?

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(iii) Whether the plaintiff is entitled to declaration sought for?

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(iv) Whether the impugned judgment is perverse and calls for our interference?

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REG: POINT NO.(i):

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The relationship between the plaintiff and

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defendant Nos.1 and 2 is admitted. Defendant No.1

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is separated from his joint family in the year 1969.

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RFA 1909/2016

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In the year 1971, the suit schedule property was acquired in the name of defendant No.2. The property fallen to the share of defendant No.1 was acquired by the BDA in the year 1969 for formation of Koramangala Layout and compensation was granted to him. In the year 1971, the house belonging to defendant No.1 situated at Koramangala was agreed to be sold for Rs.10,000/-.

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It is the specific case of the plaintiff that a

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sum of Rs.1,05,000/- and Rs.10,000/- arranged as advance was utilized for acquiring the suit schedule property in the name of defendant No.2 in the year 1971. Therefore, mother is only a name-lender and the suit property is the joint family property of plaintiff and defendant No.1. Both defendants have no right of alienation and therefore, he sought for declaration that the alienation in favour of defendant Nos.3 to 17 is not binding on him and by virtue of

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RFA 1909/2016

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Palu Patti executed by his parents on 28.01.1987, he

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has acquired title over the entire property.

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In support of the said contentions, the plaintiff and two witnesses have been examined. Ex.P1 is the award passed by the CITB (now BDA) in respect of acquisition of 3 acres 14 guntas of land in Sy.No.113/2 of Koramangala on 27.12.1973. The award carries the name of Mariyeppa and his three sons viz., Govinda Reddy, Ramaiah Reddy (defendant No.1) and Thimma Reddy. A sum of Rs.1,01,581/was received from CITB as compensation. Ex.P66 is the sale deed dated 20.10.1971 in the name of defendant No.2. The consideration paid under the said document is Rs.8,000/-. Ex.P3 is the Partition Deed dated 02.10.1969 where defendant No.1 acquired the property which in turn the subject matter of the acquisition under Ex.P1/award. Ex.P4 is the sale agreement dated 23.08.1971 by defendant No.1 in

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RFA 1909/2016

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favour of A.Rajagopal for a consideration of Rs.10,000/- and a sum of Rs.4,500/- was received as a part consideration. If the award passed by the CITB on 27.12.1973, 2 years 2 months after the acquisition of the suit property under Ex.P66, the contention of the plaintiff that the said compensation was utilized for acquiring the suit schedule property in the name of defendant No.2 is untenable.

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Insofar as agreement under Ex.P4 is concerned, a consideration of Rs.4,500/was received from A.Rajagopal by defendant No.1. As per Ex.P3 (partition deed), no house property at Koramangala was allotted to defendant No.1 towards his share. Even such alienation by defendant No.1 in favour of A.Rajagopal and taking consideration of Rs.4,500/- will not be sufficient to purchase the suit schedule property. It is pertinent to note that after receipt of compensation under Ex.P1, a sum of Rs.25,000/- was repaid to A.Rajagopal, cancellation

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RFA 1909/2016

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of Ex.P4/agreement was obtained under Ex.P5. This shows that the advance money received by defendant No.1 has been returned to A.Rajagopal with interest and the house property in Koramangala was retained by the family. Plaintiff's contention that sale consideration was mobilized by defendant No.1 has no substance. During the interval of 1969 partition, 1971 acquisition, 1971 agreement for alienation, 1973 payment of compensation and discharge of loan to A.Rajagopal in 1974, the plaintiff was a minor. How he learnt about the transaction by his parents is not explained by him nor any evidence is let in. Therefore, plaintiff's claim that the acquisition of the property in favour of the mother by father is out of joint family funds/income is incorrect. We are not persuaded with the contention of the plaintiff that the suit schedule property is the joint family property of plaintiff and defendant No.1. Accordingly, we answer point No.(i).

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RFA 1909/2016

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Reg. Point No.(ii):

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The suit schedule property is an agricultural land. As rightly contended by the learned Senior Counsel for the plaintiff that there was no approved plan or conversion of the land to non-agricultural purpose. Defendant Nos.3 to 17 are the purchasers of several sites in Sy.No.7 and these sites are all revenue sites. There cannot be any approved plan nor it can be expected that any public authority will approve revenue layout for conversion of the land. The sale deeds in favour of defendant Nos.3 to 17 are produced at Exs.P30 to P47.

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We have carefully perused the sale deeds.

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There is no reference in the sale deeds that the suit schedule property was converted into nonagricultural purpose or any approved layout has been made. The land was formed as revenue layout. It is pertinent to note that defendant No.2 is the vendor in respect of sale deed at Exs.P30, P31, P33,

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RFA 1909/2016

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P34, P37, P38, P39, P41, P42, P44, P45, P46 and P47 whereas the sale deed in Exs.P35, P36, P40 and P43 has been executed by the GPA holder of defendant No.2. There is a subsequent transfer of Ex.P35 by the buyer Alla Baksh to one Urmiladevi. Ex.P67 is the GPA executed by one Mohammed Kaleemulla to one Syed Habeeb on 17.05.2002. Ex.P69 is the GPA of Liyaqat Khan to one Bibijan on 02.06.2003. Ex.P70 is the GPA of defendant No.2 in favour of one Syed Shefeeulla on 29.07.2003. Ex.P71 is the GPA of one Thasul Islam and Jamal Mohammed to one Smt.Almas Syed. Ex.P95 is the GPA executed in favour of defendant No.2 to Nisar Ahmed on 15.01.2005. Ex.P96 is the GPA of V.P.Fakirsab to T.Saleem. Exs.P98 to 121 are GPA executed by defendant No.2 in favour of Mohammed Zakir Hussain, Humeera Banu, Syed Ameen, Ayaz Ahmed, Shafi Ahmed, Mumtaz Begum, etc. The sale deed executed by defendant No.2 in favour of the purchasers was attested by defendant No.1 as a

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RFA 1909/2016

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consenting witness. This shows that defendant Nos.1 and 2 jointly alienated sites formed in the suit schedule property. Even for the sake of argument, claim of the plaintiff that the suit schedule property is the joint family property is to be accepted, defendant No.1 is the owner of the property and he has alienated the property along with his wife. Thereby contention of the plaintiff that defendant Nos.3 to 17 will not acquire any title by virtue of such sale deed is not acceptable.

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It is interesting to note that defendant Nos.1 and 2 having two daughters i.e., one Padmamma (married) and Gayathridevi (unmarried). They were not arrayed as parties to the suit. If it is so, as we discussed while answering point No.(i), the plaintiff has failed to establish that acquisition of the suit schedule property in the name of defendant No.2 is not for the joint family nor the suit property is a joint family property of plaintiff and defendant

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RFA 1909/2016

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No.1. Hence, the alienation made by defendant No.2 being the owner of the property consented by her husband is binding on the plaintiff. Accordingly, we answer point No.(ii).

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Reg.Point No.(iii):

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The plaintiff's claim is that he has acquired the entire property by virtue of Palupatti executed by defendant Nos.1 and 2 in his favour. Ex.P6 is the

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said Palupatti dated 28.01.1987. To support the Palupatti, plaintiff has relied upon the testimony of PWs-2 and 3.

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We have carefully perused their testimonies. Since the defendants have not contested the suit, there is no cross-examination. Even if their testimony is accepted that Ex.P6 is the Palupatti, it is interesting to note that the recitals of Palupatti refers to gifting of entire suit schedule property. The names of two daughters Padmamma and Gayathridevi are not referred in the Palupatti.

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RFA 1909/2016

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There is no share allotted to defendant Nos.1 and 2. The entire property was given to plaintiff. From the evidence of PWs-1 to 3 and recitals of Ex.P6, it indicates that the document ‘Palupatti’ is a 'gift deed'.

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Section 17 of the Registration Act, 1908 contemplates mandatory registration of a document if the value is more than Rs.100/-. Undoubtedly, on the date of Palupatti, the suit property was worth more than Rs.100/-. Hence, being an unregistered document, it can only be perused for the collateral purpose that the property referred in the Palupatti belonging to defendant Nos.1 and 2 and it has been acquired by defendant No.2. Except that, Ex.P6 cannot be treated as an evidence of partition. The essence of partition is not forthcoming in Ex.P6 as no share was allotted to the parents or sisters. Hence, the claim of the plaintiff even if accepted declaring that the suit property is a joint family property under

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RFA 1909/2016

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Ex.P6, he will not derive any title. The plaintiff has not filed the suit for partition, for separate possession of his share of the property by arraying his sisters as party. Hence, relief prayed for by the plaintiff cannot be granted. Accordingly, we answer this point No.(iii).

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Reg. Point No.(iv):

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We have perused the impugned judgment.

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The Trial Court has recorded that the plaintiff has not acquired title over the suit schedule property by virtue of Ex.P6/Palupatti as it requires compulsory registration. The suit schedule property is not joint family property of the plaintiff and defendant No.1 and therefore, plaintiff is not entitled to the relief of declaration. We do not find any error or illegality in the impugned judgment and it does not call for our interference.

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RFA 1909/2016

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In view of our finding on point Nos.(i) to

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(iv), the appeal is devoid of merits. In the result,

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the following:

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ORDER

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The appeal is dismissed .

No costs.

Sd/-

CHIEF JUSTICE

Sd/JUDGE

KNM/-

Sri R Babu Reddy v. Sri K M Ramaiah Reddy

Case brief

What is this about?

What did the court decide?

Sri R Babu Reddy v. Sri K M Ramaiah Reddy

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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